Forgotten Runes NFT Holders have a commercial right to the character in their NFTs. This post is the text of the legal description of those rights.
Forgotten Runes NFT License Agreement
This Forgotten Runes NFT License Agreement (this “Agreement”) is a legally binding agreement by and between Magic Machine, LLC (“Magic Machine” or “us”), a Wyoming limited liability company, and any owner of any Forgotten Runes NFT (defined below) (“Purchaser”) or any other individual or entity that uses the Art (defined below) without owning the associated Forgotten Runes NFT (defined below) (“Non-Commercial User”) (Purchasers and Non-Commercial Users, collectively, “Users” or “you”). Magic Machine and each User may be referred to throughout this Agreement collectively as the “Parties” or individually as a “Party”. This Agreement governs the rights and obligations with respect to a Forgotten Runes NFT and the Art. By purchasing or otherwise owning a Forgotten Runes NFT, or using the Art, as applicable, you acknowledge that you have carefully read and agree to the terms of this Agreement.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THIS AGREEMENT, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND MAGIC MACHINE THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 15 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 15 WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION 14 (GOVERNING LAW AND FORUM CHOICE) OR RELEVANT PROVISIONS OF APPLICABLE LAW WILL STILL APPLY.
1. Forgotten Runes NFT Defined. “Forgotten Runes NFT” refers to a non-fungible, unique token on the Ethereum blockchain (“NFT”) (i.e., a controllable electronic record on a blockchain) that, as of its genesis issuance, contains images of Art. “Art” means each of the unique images of Runiverse characters, each associated with, and linked to, an individual Forgotten Runes NFT.
2. Additional Terms. Forgotten Runes NFTs may be available for purchase on one or more third-party platforms, such as OpenSea or other marketplaces that may be established from time to time (each, an “NFT Marketplace”), which we do not operate, or by direct purchase or transfer from unaffiliated owners of Forgotten Runes NFTs. The access and use of any NFT Marketplace is subject to the separate terms of that NFT Marketplace. In addition, although we do not guarantee that they will, third parties may grant Forgotten Runes NFT owners various entitlements and benefits. If a third party does so, such entitlements and benefits will be subject to whatever terms are provided by such third parties. We are not responsible or liable for any third-party NFT Marketplace or any third-party entitlements or benefits. Purchasers covenant not to sue Magic Machine based on activities that may occur on such NFT Marketplaces, due to third-party benefits or entitlements, or in connection with any direct purchase or transfers with unaffiliated owners of Forgotten Runes NFTs in which Purchasers may engage.
3. Ownership of a Forgotten Runes NFT.
(a) When a Purchaser acquires a Forgotten Runes NFT, that Purchaser owns all personal property rights to that Forgotten Runes NFT (e.g., the right to freely sell, transfer, or otherwise dispose of that Forgotten Runes NFT). At no point may we seize, freeze, or otherwise modify the ownership of any Forgotten Runes NFT. Such rights, however, do not include the ownership of the intellectual property rights in the Art. Such rights are licensed pursuant to Section 4 below and those terms govern your use of the Art.
(b) Purchaser may freely sell or otherwise transfer its Forgotten Runes NFT consistent with Purchaser’s rights in it as defined in this Agreement (e.g., posting a sales listing on an NFT Marketplace, by direct transfer or exchange, or otherwise) (a “Permitted Transfer”), so long as the Transferee (as defined below) is not (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; or (ii) listed on any U.S. Government list of prohibited or restricted parties (a “Prohibited Transferee”). Purchaser represents and warrants that it is not and will not transfer a Forgotten Runes NFT to a Prohibited Transferee.
(a) Non-Commercial License to the Art for Users. Subject to your compliance with this Agreement, Magic Machine hereby grants to you a non-exclusive, worldwide, royalty-free, revocable license, with the right to sublicense, to use, copy, distribute, create Derivative Works of (subject to the below) and display the Art linked to a Forgotten Runes NFT for your own personal, non-commercial use. This non-commercial license does not include the right to use that Art for any direct or indirect revenue generating purposes. For example, this license does not include the right to sell Derivative Works of the Art or use the Art in connection with the marketing or promotion of any product, service or business.
(b) Full Commercial License to the Art for Purchasers. In addition, subject to Purchaser’s compliance with this Agreement, Magic Machine hereby grants to Purchaser, for so long as Purchaser owns a Forgotten Runes NFT (as recorded on the relevant blockchain), an exclusive (except as to Magic Machine and its licensees), worldwide license, with the right to sublicense, to use, copy, distribute, create Derivative Works of (subject to the below), and display the Art linked to the Purchaser’s purchased Forgotten Runes NFT for Commercial Purposes. “Commercial Purposes” means the use of the Art for all lawful commercial purposes, whether known now or created in the future. Such purposes may include merchandising, inclusion in physical or digital media, or display in “metaverses” or other interactive digital environments.
(c) Derivative Works. Your rights include the right to create derivative works of the Art to depict the Forgotten Runes NFT character or any modification, adaptation or derivation thereof in goods or media by, for example, showing their full body or back, or reformatting the relevant Art for a particular medium (“Derivative Works”), except that you may not create Derivative Works of Art for one Forgotten Runes NFT that is confusingly similar to the Art for another Forgotten Runes NFT. Derivative Works are subject to the same limitations on the use of the underlying Art as set forth in Sections 4(a) and 4(b) of this Agreement, as applicable, i.e., you may only utilize Derivative Works for Commercial Purposes if you are the Purchaser of the applicable Forgotten Runes NFT. When you create Derivative Works, you hereby grant Magic Machine a perpetual, irrevocable, fully sublicensable (through one or more tiers), worldwide, royalty-free license to use, copy, and display such Derivative Works in connection with Magic Machine’s business, including but not limited to promoting the Forgotten Runes franchise and publishing related games and books.
(d) Revenue Share.
i. As a Purchaser, once you have generated at least $5,000,000.00 USD in lifetime Purchaser Revenue (“Purchaser Revenue Threshold”), you will so notify Magic Machine in writing or as otherwise designated by Magic Machine, and for any Purchaser Revenue that you generate in excess of the Purchaser Revenue Threshold, you will pay twenty percent (20%) of such Purchaser Revenue to Magic Machine within thirty (30) days after the end of each calendar quarter (e.g., March 31, June 30, September 30, December 31). Along with each payment, you will provide Magic Machine with a written report detailing your calculation of Purchaser Revenue in the prior calendar quarter.
ii. “Purchaser Revenue” means a Purchaser’s gross revenues derived from or generated by Purchaser, its affiliates, and its direct and indirect sublicensees from the commercialization, exploitation, licensing and/or sale of any Art or Derivative Works.
iii. As a Purchaser, if you work together or in concert with other Purchasers (“Associated Purchasers”) to collectively commercialize, exploit, license and/or sell any Art or Derivative Works as part of any commercial opportunity, partnership or venture (each, an “Opportunity”), once that Opportunity generates at least $5,000,000.00 USD in lifetime Opportunity Revenue (the “Opportunity Revenue Threshold”), you will so notify Magic Machine in writing or as otherwise designated by Magic Machine, and for any Opportunity Revenue that you generate in excess of the Purchaser Revenue Threshold, you and your Associated Purchasers will collectively pay twenty percent (20%) of such Opportunity Revenue to Magic Machine within thirty (30) days after the end of each calendar quarter (e.g., March 31, June 30, September 30, December 31). Along with each payment, you and your Associated Purchasers will provide Magic Machine with a written report detailing your calculation of Opportunity Revenue in the prior calendar quarter. You may deduct any payment of Opportunity Revenue that you personally make to Magic Machine (on behalf of you and your Associated Purchasers) under this Section from any Purchaser Revenue payable by you to Magic Machine under Section 4(d)(i).
iv. “Opportunity Revenue” gross revenues derived from or generated by Purchaser and any Associated Purchasers and their respective affiliates from the commercialization, exploitation, licensing and/or sale of any Art or Derivative Works in connection with any Opportunity.
v. As a Purchaser you may request a change in the percentage of Purchaser Revenue or Opportunity Revenue to be shared with Magic Machine as stated in Sections 4(d)(i) and 4(d)(iii) bycontacting Magic Machine via firstname.lastname@example.org Magic Machine will consider your request in good faith, may request additional information in order to evaluate your request and may, in its sole discretion, elect to negotiate a different percentage and/or other related terms with you.
(e) Enforcement. Subject to applicable law, you will have the sole and exclusive right, but not the obligation, to bring an action to enforce any infringement of any rights you hold in the Art linked to a Forgotten Runes NFT as set forth in Sections 4(a)-(c). We will have no obligation to support any such action.
(f) Protection for Purchasers. Subject to applicable law, Purchaser will have the right to procure registration or other intellectual property protection in the Art linked to Purchaser’s Forgotten Runes NFT. However, Purchaser must and hereby do agree to transfer any such registration or other protection in connection with a permitted transfer or sale of Purchaser’s Forgotten Runes NFT.
(g) Name and Trademarks. As provided in Section 5(c), no trademark rights are granted to Purchaser by Magic Machine, except the limited right to use the name of any character, location or item represented in the Art associated with a Purchaser’s Forgotten Runes NFT in connection with a Purchaser’s exercise of rights under Sections 4(a) or 4(b). However, Purchaser may acquire trademark rights itself in Purchaser’s Forgotten Runes NFT (which, for avoidance of doubt, do not include rights to the “Forgotten Runes” trademark) through the exercise of Purchaser’s license rights above in accordance with, and subject to, applicable law. Any trademark rights that Purchaser acquires, and the associated goodwill, will transfer in connection with a Permitted Transfer of Purchaser’s Forgotten Runes NFT.
(h) Transfer. The licenses in Section 4 are non-transferrable, except that they will automatically transfer in connection with a Permitted Transfer of Purchaser’s Forgotten Runes NFT.
5. Reservation of Rights.
(a) General. All rights in and to the Art not expressly provided for in this Agreement are hereby reserved by Magic Machine. The Art is licensed, not sold. Magic Machine owns and will retain all title, interest, ownership rights and intellectual property rights in and to the Art.
(b) Limitations. Without limitation of Section 5(a) above, the license in Section 4(b) does not include the right to use the Art or any Derivative Works in any manner or for any purpose that promotes violence against or directly attacks or threatens or harasses other people, including on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease (“Prohibited Uses”). If you engage in a Prohibited Use of Art or Derivative Works, Magic Machine reserves the right to immediately terminate any licenses granted to you in this Agreement.
(c) No Rights to Trademarks. For avoidance of doubt, the licenses in Section 4 do not include the right to use any Magic Machine’s trademarks (e.g., Forgotten Runes and Magic Machine). No trademark or other rights based on designation of source or origin are licensed to you. Notwithstanding the foregoing, to the extent you acquire any rights to any Forgotten Runes trademarks, you hereby assign all rights, title, and interest in and to such trademarks, together with all associated goodwill. You may not use or attempt to register any asset, including any domain names, social media accounts, or related addresses that contains or incorporates any artwork, other representation, name, or mark that may be confusingly similar to such trademarks.
(d) Disputes Among Owners. Magic Machine has no obligation to support the resolution of or to resolve any dispute that may arise between or among Forgotten Runes NFT owners.
(e) Clarifications. Magic Machine reserves the right, but has no obligation, to clarify the terms of this Agreement in relation to novel or unforeseen circumstances in its sole and exclusive discretion.
6. Transfers. Purchaser hereby agrees that all subsequent transactions involving Purchaser’s Forgotten Runes NFT are subject to the following terms: the Forgotten Runes NFT transferee (the “Transferee”) shall, by purchasing, accepting, accessing or otherwise using the Forgotten Runes NFT or Art, be deemed to accept all of the terms of this Agreement as a “Purchaser” hereof; and (b) the Forgotten Runes NFT transferor (the “Transferor”) shall provide notice to the Transferee of this Agreement, including a link or other method by which the terms of this Agreement can be accessed by the Transferee. Purchaser further acknowledges and agrees that all subsequent transactions involving Purchaser’s Forgotten Runes NFT will be effected on the blockchain network governing the Forgotten Runes NFT, and Purchaser will be required to make or receive payments exclusively through its cryptocurrency wallet.
7. Magic Machine’s Rights and Obligations to the Art. Magic Machine is not responsible for the ultimate rendering of the Art.
8. Warranty Disclaimers and Assumption of Risk. User represents and warrants that it (a) is the age of majority in User’s place of residence and has the legal capacity to enter into this Agreement, (b) that User will use and interact with the Forgotten Runes NFTs and Art, as applicable, only for lawful purposes and in accordance with this Agreement, and (c) that User will not use the Forgotten Runes NFT or Art, as applicable, to violate any law, regulation or ordinance or any right of Magic Machine, its licensors, or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent. User further represents and warrants that it will comply with all applicable law in the exercise of its rights and obligations under this Agreement.
THE FORGOTTEN RUNES NFTS AND ART ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, MAGIC MACHINE EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MAGIC MACHINE MAKES NO WARRANTY THAT THE FORGOTTEN RUNES NFTS OR ART WILL MEET PURCHASER’S REQUIREMENTS, BE CONTINUALLY DISPLAYED, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. MAGIC MACHINE MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY INFORMATION OR CONTENT MADE AVAILABLE WITH RESPECT TO THE FORGOTTEN RUNES NFTS OR ART.
MAGIC MACHINE WILL NOT BE RESPONSIBLE OR LIABLE TO PURCHASER FOR ANY LOSS IN CONNECTION WITH ANY FORGOTTEN RUNES NFT OR ART AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO PURCHASER FOR, ANY USE OF THE FORGOTTEN RUNES NFTS OR 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, NODE SERVER ERROR OR FAILURE, OR DATA LOSS OR CORRUPTION; (III) ANY FEATURES, DEVELOPMENT, ERRORS, OR OTHER ISSUES WITH BLOCKCHAIN NETWORKS; (IV) UNAUTHORIZED ACCESS TO THE FORGOTTEN RUNES NFT; OR (V) ANY THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION, THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK.
THE FORGOTTEN RUNES NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK, WHICH MAGIC MACHINE DOES NOT CONTROL. MAGIC MACHINE DOES NOT GUARANTEE THAT MAGIC MACHINE CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY FORGOTTEN RUNES NFT. PURCHASER BEARS FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, MAGIC MACHINE MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ASSETS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, AS APPLICABLE.
9. Assumption of Risk. Purchaser accepts and acknowledges all risks associated with the following:
(a) Purchaser is solely responsible for determining what, if any, taxes apply to Purchaser’s purchase, sale, or transfer of rights in the Forgotten Runes NFTs or to any Purchaser Revenue or Opportunity Revenue. Magic Machine is not responsible for determining or paying the taxes that apply to such transactions.
(b) Magic Machine does not store, send, or receive cryptocurrency assets. Any transfer of cryptocurrency assets occurs within the supporting blockchain, possibly with support from an NFT Marketplace or other third-party services, all of which are not controlled by Magic Machine. Transactions relating to Forgotten Runes NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions relating to the Forgotten Runes NFT shall be deemed to be made when recorded on a public blockchain ledger, which is not necessarily the date or time that Purchaser initiated the transaction.
(c) There are risks associated with using an Internet based digital asset, including but not limited to, the risk of hardware, software, and Internet connection and service issues, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your wallet. Magic Machine will not be responsible for any communication failures, disruptions, errors, distortions, or delays Purchaser may experience when effecting transactions relating to Forgotten Runes NFTs, however caused.
(d) Forgotten Runes NFTs may rely on third-party or decentralized platforms or systems. We do not maintain, control, or assume any obligations with respect to such platforms or systems.
10. Links to Third-Party Websites or Resources. Use and interaction of the Forgotten Runes NFTs and the Art, as applicable, may allow User to access third-party websites or other resources. To the extent that Magic Machine provides links or access to such sites and/or resources, it does so only as a convenience and is not responsible for the content, products, or services on or available from those resources or through any links displayed on such websites. User acknowledges sole responsibility for, and assumes all risk arising from, User’s use of any third-party sites or resources. Under no circumstances shall User’s inability to view or use Art on a third-party website serve as grounds for a claim against Magic Machine.
11. Termination of License to the Art. User’s licenses to the Art shall automatically terminate and all rights shall revert to Magic Machine if at any time: (a) User breaches any portion of this Agreement or (b) User engages in any unlawful activity related to the Forgotten Runes NFT (including transferring the Forgotten Runes NFT to a Prohibited Transferee), as applicable. Upon any termination, discontinuation or cancellation of User’s licenses to the Art, Magic Machine may disable User’s access to the Art and User shall delete, remove, or otherwise destroy any back up or other digital or physical copy of the Art. Upon any termination, discontinuation, or cancellation of the license in this Agreement, the following Sections will survive: 3, 5 through 16.
12. Indemnity. User shall defend, indemnify, and hold Magic Machine, its licensors and affiliates, and each of them, and all of their respective officers, directors, employees and agents (the “Indemnified 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 Forgotten Runes NFTs whether or not such person personally purchased the Forgotten Runes NFTs) against the Indemnified Parties, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, as applicable, (a) your access to or use of the NFT Marketplace or any third-party services or products, (b) your breach or alleged breach of this Agreement, or (c) your exercise of the licenses in Section 4.
13. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MAGIC MACHINE, NOR ANY OF ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE FORGOTTEN RUNES NFTS, 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 THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE OR INTERACT WITH THE FORGOTTEN RUNES NFTS OR ACCESS THE ART, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MAGIC MACHINE 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.
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MAGIC MACHINE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE OR INTERACT WITH THE FORGOTTEN RUNES NFTS OR ACCESS THE ART, OR ANY OF THE RIGHTS AND LICENSES GRANTED HEREIN EXCEED ONE THOUSAND U.S. DOLLARS ($1,000).
(c) BY PURCHASING A FORGOTTEN RUNES NFT, PURCHASER ACKNOWLEDGES THAT THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MAGIC MACHINE AND PURCHASER.
14. Governing Law and Forum Choice. This Agreement 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 California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 15 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) will be the state and federal courts located in the Los Angeles, California, and you and Magic Machine each waive any objection to jurisdiction and venue in such courts.
15. Dispute Resolution.
(a) Informal Dispute Resolution. The Parties must first attempt to resolve any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, or the use of the Forgotten Runes NFTs (collectively, “Disputes”) informally. Accordingly, neither Party may start a formal arbitration proceeding for at least sixty (60) days after one party notifies the other party of a claim in writing. As part of this informal resolution process, User must deliver a written notice of any Dispute via first-class mail to Magic Machine at: Magic Machine, 30 N Gould St Ste R Sheridan, WY 82801
(b) Mandatory Arbitration of Disputes. The Parties agree that any Dispute will be resolved solely by binding, individual arbitration and not in a class, representative, or consolidated action or proceeding. The Parties agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that each Party is waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
(c) Exceptions. As limited exception to Section 15(b) 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 our intellectual property rights.
(d) 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 this Agreement. 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 you live, with provision to be made for remote appearances to the maximum extent permitted by the AAA rules, unless we 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 this arbitration agreement.
(e) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and Magic Machine won’t seek to recover the administration and arbitrator fees Magic Machine is responsible for paying, unless the arbitrator finds your Dispute is frivolous. If Magic Machine prevails in arbitration, Magic Machine 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.
(f) Injunctive and Declaratory Relief. Except as provided in Section 15(c) 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 Magic Machine 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.
(g) Class Action Waiver. YOU AND MAGIC MACHINEAGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR 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 with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(h) Severability. With the exception of any of the provisions in Section 15(g) of this Agreement (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
16. General Terms. This Agreement will transfer and be binding upon and will inure to the benefit of the Parties and their permitted successors and assigns, in particular any permitted Transferee. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the Parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the Parties may agree in writing. This Agreement may be amended by Magic Machine in its absolute and sole discretion; provided, that Magic Machine shall give notice of any material amendments to this Agreement to the holders of the Forgotten Runes NFTs through reasonable and public means (i.e., public post on a social media network, e.g., Twitter) and Magic Machine may not amend this Agreement to materially reduce or terminate any rights under Section 4(b). Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither Party is, by virtue of this Agreement 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, or to bind such other Party in any manner. Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever. Each of the Parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement 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. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. Neither Party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of this Agreement, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”. Except as set forth in Section 15(a), User may give notice to Magic Machine by contacting Magic Machine at email@example.com. Notice is effective upon receipt. The Parties have agreed to contract electronically, and accordingly, electronic signatures will be given the same effect and weight as originals.