BY ACCEPTING THESE TERMS, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND YUGA LABS THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 11 (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 11 WILL NOT APPLY TO YOU, BUT THE PROVISIONS OF SECTION 13 (GOVERNING LAW AND FORUM CHOICE) AND RELEVANT PROVISIONS OF APPLICABLE LAW WILL STILL APPLY. YOU ALSO WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS WIDE ARBITRATION.
KODA NFT AND KODA ART TERMS
These terms (“Terms”) are a legally binding agreement by and between Yuga Labs, Inc. (“Yuga Labs,” “we” or “us”), a Delaware corporation, and any holder of a Koda NFT (defined below) (“you” or “Holder”), governing the parties’ rights and obligations with respect to Koda NFTs and Koda Art (defined below).
1. Origin Story aka Definitions
- (a) “Additional Features” are any supplementary features, objects, traits, or other elements that Yuga Labs, or third parties authorized by Yuga Labs, make available to be depicted on top of, as a new layer of, to be situated around, or otherwise to be added to, Koda Art. Additional Features may include gear, jewelry, or clothing to be worn by or displayed on a Koda, or shapes, objects, creatures or characters that may surround a Koda. For example, a KodaPendant (defined below) is an Additional Feature.
- (b) “Koda” is a fictional creature, created and commonly referred to by Yuga Labs as a Koda, that “roams” in Yuga Labs’ metaverse Otherside.
- (c) “Koda Art” is any artwork that the Koda Smart Contract has at any time associated with a Koda NFT, including Original Koda Art, any Additional Features, and any Updated Koda Art.
- (d) “Koda NFT” is a non-fungible token minted by, from or using, the Koda Smart Contract.
- (e) “Koda Smart Contract” is a smart contract deployed to the Ethereum
blockchain at address
0xE012Baf811CF9c05c408e879C399960D1f305903, or such other smart contract(s) as designated by Yuga Labs from time to time in its sole discretion, including any replacement, upgrade, or successor smart contract(s) that Yuga Labs may designate in its sole discretion.
- (f) “KodaPendant” is an Additional Feature offered in connection with the “Otherside Relics by Gucci: KodaPendant” activation that, if purchased, will result in an update to a Koda NFT’s metadata to modify the applicable Original Koda Art to adorn the applicable Koda with a pendant necklace.
- (g) “Original Koda Art” is, with respect to each Koda NFT, the unique digital artwork that was associated with such Koda NFT at the time of minting, which depicted a Koda.
- (h) “Updated Koda Art” is Koda Art as modified by any Additional Features.
- (i) “Your Koda Art” is the Koda Art that the Koda Smart Contract associates with Your Koda NFT.
- (j) “Your Koda NFT” is the Koda NFT that the Koda Smart Contract records as being owned by your digital wallet.
- (k) “Your Original Koda Art” is the Original Koda Art that the Koda Smart Contract initially associated with Your Koda NFT and, thereafter, solely in the form made available to you by Yuga Labs.
- (l) “Your Updated Koda Art” is the Updated Koda Art that the Koda Smart Contract associates with Your Koda NFT.
- (a) You Own Your Koda NFT. You hold the exclusive right to hold, sell, transfer, and execute blockchain transactions involving Your Koda NFT. Except for the Koda NFTs we own, Yuga Labs has no right or ability to seize, freeze, or otherwise modify the ownership of any Koda NFT without authorization from the Holder; provided, the foregoing shall not restrict Yuga Labs’ right to modify the Koda Art.
- (b) We Own (but License to You) the IP in Koda Art. As between you and Yuga Labs, Yuga Labs owns all rights, title, and interest in and to the Koda Art, including any and all copyrights, trademarks, and other intellectual property rights therein (“IP”). However, as set forth below, we grant you a license to use certain of Your Koda Art for as long as you hold Your Koda NFT.
- (c) You Own the IP in Your Derivative Works. As between you and Yuga Labs, you own all rights, title and interest in and to any “derivative work,” as defined by the United States Copyright Act, based upon Your Original Koda Art that is created in strict compliance with these Terms (including, but not limited to, Section 3(b)) (“Derivative Work”); provided, however, that (i) we retain the copyright in the Original Koda Art underlying any Derivative Work; (ii) your use of any Derivative Work during and after the License Term (defined below) is subject to these Terms (including the license/reservation of rights in Section 3(b)); (iii) your use of any Derivative Work after the License Term may require a license from the current owner of the Koda NFT; and (iv) the creation and possession of your Derivative Work complies in all respects with these Terms.
- (d) Utility. Holders of a Koda NFT may be offered certain utility, benefits, or entitlements (collectively, “Utility”) from time to time, but these Terms do not confer any Utility except for the rights granted under the license below. Yuga Labs makes no assurances of any Utility. Any Utility may be subject to other terms and conditions. Yuga Labs will not be responsible in any manner for any Utility offered, or proposed to be offered by, any third party.
- (a) Grant. Subject to your acceptance of, and compliance with, these
Terms, upon lawfully acquiring Your Koda NFT and for so long as you hold Your
Koda NFT (both dates as recorded by the Koda Smart Contract) (the “License
Term”), Yuga Labs grants to you:
- i. a “Personal License,” meaning a non-exclusive, universe-wide, royalty-free, license to use, copy, and display (but without any right to sublicense, whether through one or more tiers) Your Original Koda Art and Your Updated Koda Art for your personal, non-commercial use, including (1) for home display, display in a virtual gallery, or as a social media avatar; (2) to create a reasonable number of back-up copies and a physical print, each to be retained only for so longa s You own Your Koda NFT; and (3) as part of a Yuga Labs’ website or application, or the website or application of a third party approved in Yuga Labs’ sole discretion, that permits the inclusion, involvement, or participation of Your Koda NFT. As part of the Personal License, if You hold a Koda NFT with the KodaPendant Additional Feature (“Kodapendant NFT”) You will be also entitled to create derivative NFTs of your Kodapendant NFT on 10KTF (https://10ktf.com/) for the sole and exclusive purpose of using such derivative NFTs on Yuga Lab’s Battle.Town game available at https://battle.town/; and
- ii. a “Commercial License,” meaning an exclusive, universe-wide, royalty-free, sublicensable license to reproduce, distribute, prepare derivative works based upon, publicly display, publicly perform, transmit, and otherwise use and exploit, only Your Original Koda Art. The Commercial License is intended to be broad, enabling you to make both commercial and non-commercial uses of Your Original Koda Art, in any and all media, whether existing now or invented later, subject only to the restrictions set forth below and by applicable law. For the avoidance of doubt, the Commercial License does not apply to Your Updated Koda Art (or any Additional Feature(s), including but not limited to, the KodaPendant), which shall remain subject solely to the Personal License at all times, and you may not exercise the Commercial License in any manner to recreate, make derivatives, or to exploit Your Updated Koda Art or any Additional Features, including but not limited to, the KodaPendant.
- (b) Restrictions and Reservations.
- i. Without limiting Sections 2(a)(i) and (ii), the above licenses extend only to Your Original Koda Art and Your Updated Koda Art, in each case, in their entirety. This means, in each case, the complete selection, arrangement, and composition of all base layers, traits, features, attributes, and other elements that comprise Your Original Koda Art and Your Updated Koda Art, as applicable. Thus, for the avoidance of doubt, while the Commercial License allows you to create and exploit Derivative Works, the Commercial License does not grant you rights in any individual layer, trait, feature, attribute, or other element of Your Original Koda Art. For example, the Commercial License allows you to create three-dimensional renderings of, and to add new original clothing or accessories to, Your Original Koda Art, but does not allow you to extract individual features (e.g., body features, accessories) for use in a separate work, or to include or add any Additional Features into such three-dimensional rendering.
- ii. Nothing herein grants you any rights in or to Yuga Labs’ or any third party’s trade names, brands, logos, trade dress, or trademarks (e.g., “Yuga Labs,” “Koda,” “Gucci,” “Otherside,” or “Otherside Relics by Gucci”), all of which are, as between you and Yuga Labs, expressly owned and reserved by Yuga Labs or its licensors (collectively, “Yuga TM Rights”). You hereby agree that any Yuga TM Rights you purport to acquire, together with any associated goodwill, shall automatically, immediately, and at your expense be assigned to Yuga Labs or its licensors (as applicable).
- iii. Any application to register a trademark for Your Original Koda Art must occur during the License Term and be based solely upon the actual use of Your Original Koda Art in commerce and solely for the goods or services in connection with which Your Original Koda Art has actually been used in commerce in the applicable jurisdiction as of the date of the application. Thus, you may not seek to register a trademark in Your Original Koda Art on an “intent to use” basis or where you otherwise have not used Your Original Koda Art in commerce.
- iv. You may not use Your Original Koda Art or Your Updated Koda Art in a manner that expresses hate or encourages violence towards a person or group based on membership in a protected class, such as race, religion, gender, orientation, or disability.
- v. You may not use Your Original Koda Art or Your Updated Koda Art in a manner that violates applicable law.
- vi. All rights not expressly granted herein are reserved by us.
- (c) License Back to Yuga Labs. You agree to grant, and hereby grant, to Yuga Labs an irrevocable, perpetual, non-exclusive, universe-wide, royalty-free, sublicensable license to reproduce, distribute, publicly display, publicly perform, transmit, and otherwise use and exploit Your Original Koda Art for the purpose of (i) promoting or exhibiting Otherside or the Koda NFT collection; (ii) creating, and authorizing third parties to create, avatars, characters, and other objects based on Your Koda Art designed for use in one or more metaverse or other digital environments or applications; (iii) offering any Additional Features and/or Successor Koda NFTs (defined below).
- (a) Copyright Notices. You may include the following copyright notice with Your Koda Art: “Kodas © 2022 Yuga Labs”, which Yuga Labs may update from time to time (the “Yuga Copyright Notice”). Subject to your compliance with these Terms, you may include a copyright notice identifying you, or such other person you designate, as the copyright owner of any Derivative Work created during the Commercial License Term, provided that you also include the Yuga Copyright Notice.
- (b) Copyright Registrations. If you apply to obtain a copyright registration in a Derivative Work, you may identify you or such other person you designate as the copyright owner of such Derivative Work, but must in all cases identify Your Original Koda Art as a preexisting work upon which the Derivative Work is based.
- (c) Actions. To the extent applicable law authorizes you to bring a claim for infringement based upon the unauthorized use of Your Original Koda Art, you agree that: (i) any such claim shall be based solely upon the unauthorized use of Your Original Koda Art, not other Koda Art—for example, on the ground that other Koda Art is substantially similar to Your Original Koda Art; and (ii) Yuga Labs may, in its sole discretion, join and, unless it would materially prejudice your rights, elect to take over the control of the prosecution of, any such action.
- (d) Disputes Among Holders. Yuga Labs has no obligation to support the resolution of, or resolve any, dispute that may arise between Koda NFT holders.
- (a) No Decoupling. Except as expressly provided herein, ownership of a Koda NFT and the applicable Personal License or Commercial License are not separable in any way. You may not engage in any transaction or activity that purports to decouple the applicable Personal License or Commercial License from Your Koda NFT.
- (b) Termination of License. Upon the transfer of Your Koda NFT to a new Holder, as recorded by the Koda Smart Contract: (i) your Personal License and Commercial License, including any sublicenses granted thereunder, shall immediately and automatically terminate; (ii) you must discontinue any use of Your Original Koda Art as a trademark or other source identifier; and (iii) any trademark and corresponding registration obtained in connection with your exercise of the Commercial License shall be deemed abandoned unless duly transferred to the new Holder under a separately negotiated written agreement.
- (c) Published Works. If, during the License Term, you create and make
available to the public a work using Your Original Koda Art (a “Published
Work”), you may, except as set forth in Section 5(c), continue to use and
exploit that Published Work in accordance with these Terms after the License
Term; provided, however, that: (i) you will be responsible for any obligations
or liabilities arising from your continued use of the Published Work after the
License Term; and (ii) this privilege does not allow you to use the Original
Koda Art to create any new works or materials after the License Term. Thus,
- A digital series featuring Your Original Koda Art that was released during the License Term may continue to run after the License Term, but any creation or distribution of any new episodes featuring such Original Koda Art would require a license from the new Holder.
- After the License Term, you may sell off existing (at the time of transfer) inventories of merchandise featuring Your Original Koda Art that were created and offered for sale during the License Term, but the creation or distribution of any new merchandise or inventory featuring the Original Koda Art would require a license from the new Holder.
- (d) Successor Koda NFTs. From time to time and in Yuga Labs’ sole discretion, you may be offered the opportunity and option to mint, claim, or otherwise receive a replacement or substitute non-fungible token to be Your Koda NFT (i.e., a non-fungible token that will be associated with Your Updated Koda Art) (a “Successor Koda NFT”). For the avoidance of doubt, Your Koda NFT will not become a Successor Koda NFT solely by way of the addition or inclusion of Additional Features with respect to Your Updated Koda Art. In connection with, and to be eligible for the mint, claim, receipt or redemption of, the Successor Koda NFT to Your Koda NFT, you will be required to agree to any and all additional terms and conditions associated with such mint, claim, receipt or redemption, including but not limited to the burning of Your Koda NFT then-existing, as Yuga Labs shall determine and communicate to you from time to time. You may not be obligated to mint, claim, receive or redeem a Successor Koda NFT, but if you do, you agree to continue to be subject and bound by these Terms (or new terms that Yuga Labs may designate in its sole discretion) with respect to your Successor Koda NFT.
6. Holder’s Representations and Warranties
Holder represents and warrants that Holder:
- (a) is over the age of majority and has the legal capacity to enter into these Terms;
- (b) will only use and interact with any Koda NFT and Koda Art in accordance with these Terms;
- (c) will comply with all applicable law in the exercise of its rights and obligations under these Terms and will not violate any right of Yuga Labs, its licensors, or any right of any third party;
- (d) is not, and will not, execute a transaction involving a Koda NFT with any person who is,
- (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; and
- (e) has and will have all rights necessary to grant to Yuga Labs the license set forth in Section 3(c).
7. Warranty Disclaimers
- (a) EACH OF THE KODA SMART CONTRACT, KODA NFT AND KODA ART IS PROVIDED OR MADE ACCESSIBLE “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, YUGA LABS 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 COURSE OF DEALING OR USAGE OF TRADE.
- (a) EACH KODA NFT IS AN INTANGIBLE DIGITAL ASSET THAT EXISTS ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE ETHEREUM BLOCKCHAIN. ANY TRANSFER OF OWNERSHIP THAT MIGHT OCCUR IN ANY KODA NFT OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM BLOCKCHAIN, WHICH YUGA LABS DOES NOT CONTROL.
- (b) YUGA LABS WILL NOT BE RESPONSIBLE OR LIABLE TO HOLDER FOR ANY LOSS IN CONNECTION WITH ANY KODA SMART CONTRACT, KODA NFT OR KODA ART AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO HOLDER FOR, ANY USE OF OR INABILITY TO ACCESS OR USE THE KODA SMART CONTRACT, ANY KODA NFT OR KODA ART, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS OR SEED PHRASES, 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 DIGITAL WALLETS; (V) UNAUTHORIZED ACCESS TO ANY KODA NFT OR KODA ART; OR (VI) THE ACTS OR OMISSIONS OF ANY THIRD PARTY.
- (c) EXCEPT AS OTHERWISE AGREED BETWEEN YUGA LABS AND YOU SEPARATE AND APART FROM THESE TERMS, YUGA LABS WILL NOT BE RESPONSIBLE TO ANY HOLDER FOR ANY LOSS IN CONNECTION WITH ADDITIONAL FEATURES OR UPDATED KODA ART, IRRESPECTIVE OF WHETHER ANY SUCH MODIFICATION, OR IF NO MODIFICATION, OCCURS.
- (d) YUGA LABS WILL NOT BE RESPONSIBLE TO ANY HOLDER FOR ANY LOSS IN CONNECTION WITH ANY SUCCESSOR KODA NFT OR OTHER REPLACEMENT OR UPDATE TO YOUR KODA NFT OR IF NO REPLACEMENT OR UPGRADE OCCURS.
- (e) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONSUMER CONTRACTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. Assumption of Risk
Holder accepts and acknowledges all risks associated with the following:
- (a) Koda NFTs, and Koda Art subject to the Commercial License, may be used in a variety of ways. While we strongly encourage transparency, communication, and research prior to acquiring a Koda NFT, including to understand what previous and existing uses have been made of the Koda NFT and Koda Art and how those uses may affect value, any purchase of a Koda NFT is at the purchaser’s own risk. Yuga Labs is not responsible for verifying or providing information on how a Koda NFT or its Koda Art have been exploited. Additional documentation from a Koda NFT holder may be necessary or prudent.
- (b) Yuga Labs is not responsible for determining or paying any taxes that apply to any Holder’s purchase, sale, transfer, or exploitation of rights in each Koda NFT. As between the parties, Holder is responsible for determining what, if any, taxes apply to such transactions.
- (c) Transactions involving Koda NFTs and Koda Art rely on third-party or decentralized platforms, systems, or marketplaces. We do not maintain, control, or assume any obligations with respect to such platforms, systems, or marketplaces. To the extent that Yuga Labs provides links or access to third party platforms, sites, or other resources, it does so only as a convenience and is not responsible for the content, products, or services on or available from those third parties or through any content displayed thereon.
Holder shall defend, indemnify, and hold Yuga Labs, its licensors, affiliates, representatives, and service providers, 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, expenses, and other similar results or occurrences (including attorneys’ fees) that directly or indirectly arise from or in connection with, or are related to, any claim, suit, action, dispute, demand, or proceeding or other similar occurrence, process, or activity that is initiated, made, brought, or financed by a third party (including any person who accesses or transacts using any Koda NFT or Koda Art, whether or not such person personally purchased a Koda NFT) against any Indemnified Party, or on account of the investigation, defense, or settlement thereof, arising out of, related to, or in connection with: (a) your access to or use of any NFT marketplace or third-party services or products; (b) your breach or alleged breach of these Terms; (c) your exercise or attempted exercise of the Personal License or Commercial License; or (d) your actual or alleged violation of applicable law. Counsel to be used in the defense of such claim must be approved by Yuga Labs in writing prior to retention of such counsel and, upon our request, you will allow us to participate in the defense of any such claims. You will not enter into any settlement or compromise of any claim or litigation or that includes an admission of liability without our prior written consent.
10. 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 KODA NFT OR KODA ART, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT YUGA LABS 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 ONE HUNDRED DOLLARS ($100).
- (b) BY PURCHASING OR OWNING A KODA NFT, HOLDER ACKNOWLEDGES THAT THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YUGA LABS AND HOLDER.
11. Dispute Resolution
- (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 Koda NFT or Koda 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 the License or these Terms.
- (b) Exceptions. As a limited exception to Section 11(a) 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 Yuga Labs won’t seek to recover the administration and arbitrator fees for which Yuga Labs is responsible unless the arbitrator finds your Dispute is frivolous. If Yuga Labs prevails in arbitration, Yuga Labs 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 in Section 11(d) 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 Yuga Labs 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 reliefs shall be stayed pending the outcome of the merits of any individual claims in arbitration.
- (f) Class Action Waiver. YOU AND YUGA LABS AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS APLAINTIFF 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 a party’s 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.
- (g) Severability. With the exception of any of the provisions in Section 11(f) (Class Action Waiver), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
Yuga Labs reserves the right to clarify or amend these Terms by publicly publishing a new version of them, including, but not limited to, on https://yuga.com/links/licenses and https://otherside.xyz/license/koda.
13. 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 in Section 11 (Dispute Resolution), 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 Yuga Labs each waive any objection to jurisdiction and venue in such courts.
- (a) Each of the Personal License and Commercial License applies only to the Koda NFT on the blockchain that Yuga, in its sole discretion, may designate, which designation shall apply retroactively. Thus, for example, if a fork or other event purports to result in duplicate Koda NFTs, only the non-fungible token recorded on the blockchain designated by Yuga Labs will be eligible to receive the benefit of the applicable Personal and Commercial License. Any license purportedly granted hereunder to the owner of a non-fungible token recorded on a blockchain not designated by Yuga Labs is void ab initio.
- (b) These Terms will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns.
- (c) 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. Without limitation, the terms of any other document, publication, course of dealing, or course of trade will not modify these Terms, except as expressly provided in Sections 12 or 14(a) or as the parties may agree in writing.
- (d) Failure to promptly enforce a provision of these Terms or any rights related to the Koda NFT or Koda Art will not be construed as a waiver of such provision or rights.
- (e) 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.
- (f) 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.
- (g) 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.