Surge Passport NFT Agreement
This ‘NFT Agreement’ [hereinafter the Agreement] governs the use of NFTs issued by Surge Women Inc., [hereinafter the Creator] as part of the Surge NFT Passport Collection 2022 [hereinafter the Collection].
The Agreement shall apply to the Creator and any person or entity who has acquired any NFT or Fractional NFT, or rights relating to any NFT or Fractional NFT, from the Collection. By acquiring any NFT or Fractional NFT, or rights pertaining to such NFTs or Fractional NFTs, you agree to be bound by this Agreement. The Agreement shall be effective as of the Effective date.
1. DEFINITIONS
i. Art is any design, digital creation, literary work, illustration, video, 3d art, fictional character, or graphic work associated with an NFT, including the complete rendered image of the artwork attached to the NFT.
ii. Creator is the entity, i.e. Surge Women Inc., who created and issued the Collection.
iii. Effective Date is the date on which this Agreement shall be deemed to have entered into force. The Effective Date for
a. the Creator shall be 28 April 2022
b. the Owner, the Previous Owner, the Fractional NFT Owner and Previous
Fractional NFT Owner shall be the date on which the NFT or Fractional NFT
was acquired.
c. any third parties who have acquired rights pertaining to any NFT or Fractional
NFT, shall be the date on which such rights were assigned.
iv. Fractional NFT is a fraction of an NFT, which has been rightfully fractionalized on blockchain with the consent of the Owner of the NFT.
v. Fractional NFT Owner is the person or entity which currently owns the Fractional NFT. A person or entity may become an Owner upon creating the Fractional NFT, or upon the Fractional NFT being sold or legitimately transferred to them by the Previous Fractional NFT Owner.
vi. NFT is any non-fungible token recorded on the blockchain, confirming to the ERC- 721 A standard. It must have been issued by the Creator, forming part of the Collection.
vii. Previous Owner is the person or entity which previously owned the NFT, prior to its sale or transfer to another person or entity. On completion of transfer, the transferor becomes the Previous Owner and transferee becomes the Owner. There may be several Previous Owners of an NFT, but only one Owner.
viii. Previous Fractional NFT Owner is the person or entity which previously owned the Fractional NFT, prior to its sale or transfer to the Fractional NFT Owner. There may be several Previous Fractional NFT Owners, but only one Fractional NFT Owner.
ix. Own means, with respect to an NFT, an NFT that has been purchased or otherwise rightfully acquired from a legitimate source, where proof of such purchase is recorded on the relevant blockchain.
x. Owner is the person or entity which currently Owns the NFT. A person or entity may become an Owner upon minting an NFT, or upon the NFT being sold or legitimately transferred to them by the Previous Owner. On the NFT being transferred, the transferor ceases to be the Owner, and the transferee becomes the Owner of the NFT.
xi. Utilities are the benefits that Owners of NFTs might enjoy by virtue of their Ownership of NFT.
xii. Users are any and all such persons, including but not limited to Owners, Previous Owners, Fractional NFT Owner, Previous Fractional NFT Owners and third parties who have been assigned rights relating to NFTs, Fractional NFTs or their Art.
xiii. Website is the official website of the Creator, which contains information pertaining to the Creator and the Collection.
2. OWNERSHIP
i. The Creator owns all legal rights, title, and interest in the Art, and all intellectual property rights therein. The rights which the Owner or Fractional NFT Owner has in and to the Art are limited to that described in this Agreement. Creator reserves all rights in and to the Art, not expressly granted in this Agreement.
ii. The Owner owns and enjoys exclusive rights over their NFT. Ownership and exclusive rights over the NFT do not automatically amount to ownership and rights over the underlying Art.
3. ASSIGNMENT
Subject to the continued compliance with the terms of this Agreement and applicable laws, the Creator grants the Owner, non-exclusive, transferable, license to use, copy, display, modify and create derivative works of the Art, subject to limitations contained in Clauses 4 and 5.
4. INTELLECTUAL PROPERTY RIGHTS
Subject to the continued compliance with the terms of this Agreement, the owner of an NFT, as regards the Art associated with their NFT, has the right to
i. Display the Art
The Owner has the right to display the Art on digital media and physical assets.
ii. Copy the Art
The Owner may make physical and digital copies of the Art and distribute the same.
iii. Modify and make derivatives of the Art
The Owner may modify and make derivatives of the Art, to the extent that it does not violate the terms of this Agreement and the Author’s moral rights.
5. COMMERCIAL BENEFITS
i. The Owner may exercise their rights under Clause 4 to generate revenue from the use of their Art. Accumulation of commercial benefits must be in adherence to the conditions stipulated herein.
ii. The revenue generated from an NFT must not exceed USD 250,000/- in gross revenue per year.
iii. If the annual gross revenue exceeds USD 250,000/-, a fraction of the amount exceeding USD 250,000/- must be donated to either the Creator or towards any other cause for women empowerment.
iv. If the Owner chooses the latter option, they must first seek the Creator’s approval to donate to the said cause, by submitting an Application on the Creator’s website.
a. The Application must be submitted within 10 days of receiving gross revenue, in excess of USD 250,000/-. If approved, the organisation or cause shall be listed in the Creator’s website. Once listed, the Owner shall make the donation, as per the directions provided in the website.
b. The donation must be paid annually. It shall be paid within 13 months of having received the concerned NFT. After the first year has passed, the donation shall be paid on the same month, annually. For e.g., if an Owner acquired an NFT on July 2022, and thereafter receives commercial benefits exceeding USD 250,000/- between July 2022 and July 2023, the Owner shall donate the requisite amount within August 2023. Thereafter, the donation shall be made in August, annually. However, if the amount in excess of USD 250,000/- is received after 13 months have passed (e.g. October 2023), the donation shall be made in August, 2024.
c. The donation must be made within the thirteenth month, irrespective of the outcome of the Application referred to in Clause 5(iv). In the event the Application has not been approved within the time stipulated in Clause 5(iv)(b), the donation shall be made to the Creator or one of the pre-approved causes or organizations listed on the Creator’s website.
d. The amount to be paid as donation, shall be ascertained accordingly:
If the gross revenue generated from an NFT is in excess of USD 250,000/-, but within 1,000,000, 4% of such excess amount shall be donated.
If the gross revenue generated from an NFT is between USD 1,000,001/- and USD 5,000,000/-, 2% of such excess amount shall be donated.
If the gross revenue generated from an NFT is above USD 5,000,00/, 1% of such excess amount shall be donated.
v. If the gross revenue generated is not in USD, the USD equivalent of the cryptocurrency or fiat currency collected shall be considered when calculating the amount to be donated.
vi. In the event of delay or non-fulfilment of the terms of this Clause, the Owner shall be liable to pay damages, equivalent to the amount to be donated as per Clause 5(iv)(d), and an additional USD 200/day, starting from the first day of default.
6. ASSIGNMENT TO THIRD PARTIES
i. The owner may assign their right to use, copy, display, modify and make derivatives of the Art, including the right to derive commercial benefits resulting from the Art, to third parties, to the extent that it does not violate the author’s moral rights or the terms of this Agreement. Such third parties are also bound by this Agreement, and must specifically adhere to the restrictions stipulated in Clauses 4 and 5 of the Agreement
ii. In the event the gross revenue generated from an NFT exceeds USD 250,000/-, the Owner shall be liable to make annual donations as stipulated in Clause 5. For the purpose of calculating gross revenue, the sum total of the amount which has been acquired by the Owner and third parties shall be considered. The liability to make such donations are that of the Owner. In the event of breach, the Owner shall be liable to pay damages as stipulated in Clause 5(vi).
7. FRACTIONAL NFT
i. Creation of Fractional NFT: The Owner of an NFT may create and transfer Fractional NFTs of such NFT. The right to fractionalise an NFT rests solely with the Owner of the NFT. The Owner has the liberty to transfer rights pertaining to their NFT and the Art to the Fractional NFT Owners, to the extent that it does not violate the terms of this Agreement.
ii. Commercial Benefits from Fractional NFT Sale: If the Owner of an NFT fractionalises their NFT, then the commercial benefits derived from each of such Fractional NFTs shall be considered when calculating the gross revenue generated from the NFT. If the amount generated from all the Fractional NFTs of an NFT exceeds USD 250,000/-, the Owner of such NFT shall be bound to donate a fraction of the gross revenue as stipulated in Clause 5. The liability to donate the portion of the gross revenue shall be that of the Owner. In the event of Breach, the Owner shall be liable to pay damages as stipulated in Clause 5(vi).
iii. Fractional NFT Owners: Owners of Fractional NFTs are bound by this Agreement, and must specifically adhere to the restrictions stipulated in Clauses 4 and 5 of the Agreement.
8. NFT UTILITIES
i. The Owners may receive Utilities, otherwise referred to as perks, subject to the stipulations provided in the Creator’s Website. Ownership of NFT does not automatically grant an Owner access to the perks.
ii. Fractional NFT Owners cannot claim Utilities, unless expressly provided for in the Website.
iii. Neither the Creator nor third parties have any obligation to inform you of, or provide you with Utilities.
iv. It shall be the sole responsibility of the Owner to assess the risks and benefits associated with Utilities.
v. The Owner has the liberty to refrain from claiming Utilities.
9. CREATION OF DAO
Owners and Fractional NFT Owners may use their NFTs or Fractional NFTs to create and administer Decentralised Autonomous Organisations, to the extent that it does promote immoral, unethical or illegal activities. If the Creator deems the functioning of a DAO to be in violation of the values of the Creator, the DAO must be terminated.
10. CREATOR RIGHTS
i. The Creator shall have the right to enforce on behalf of the author, all moral rights of the author of the Art.
ii. The Creator shall have the right to promote and advertise, including on social media and NFT marketplaces, the Art pertaining to any NFTs, irrespective of whether such NFTs are Owned by other parties.
iii. The Creator shall be entitled to receive royalties from resale of the NFT.
11. TRANSFER OF NFTs
i. On transfer of an NFT, the rights pertaining to such NFT and its Art shall also be transferred to the receiver. On transfer, the transferor shall become the Previous Owner, and the transferee, the Owner of the NFT. The concerned parties have the liberty to modify the rights referred to in Clause 4, on transfer of the NFT, via a binding written agreement, to the extent that it does not breach the terms of this Agreement. Such rights must not exceed that which has been assigned to them by the Creator under Clause 4 of this Agreement.
ii. In the absence of such an agreement, all rights contained in Clause 4 shall be deemed to be transferred, subject to the restrictions stipulated in this Agreement.
iii. All rights relating to the Art, granted by the Owner to any third parties, and all rights of the Owner over their derivative works shall not be transferred, and shall remain with the Owner and such third parties, unless there is a binding written agreement to the contrary. Information pertaining to the non-transfer of such rights shall be expressly communicated to the new Owner, prior to the sale of the NFT.
12. RESTRICTIONS
i. Users shall not use the NFT or Art in any way that could be construed as being adverse or derogatory to the image and goals of the Creator.
ii. Users shall ensure that their actions pertaining to the Art and NFT does not infringe the moral rights of the author. They must also not use their NFT or Art for illegal, immoral or unethical purposes.
iii. Users shall not use the trademarks, logos, or proprietary words of the Creator, unless permitted by applicable law or by written agreement.
13. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES
i. Upon minting, the Creator shall not have any control over the transfer of NFTs, unless permitted under this Agreement.
ii. Not more than USD 250,000/- shall be generated in gross revenue annually from one NFT, unless permitted under this Agreement.
iii. The Creator shall not be liable for any incidental, consequential or punitive damages, including but not limited to any damages for lost profits. In no event shall the total liability of a User exceed USD 200.
iv. The Creator shall not be liable for theft, scams or related offences pertaining to NFTs or Fractional NFTs.
v. Users accept the inherent security risk of providing information and dealing online over the internet and the risk associated with the use of blockchain technology, and agree that the Creator has no liability or responsibility for any breach of security and incidental issues. If applicable law does not allow all or any part of the above limitation of liability, the limitations will apply only to the extent that it is permitted by applicable law.
14. APPLICABLE LAW
This Agreement, including Clause 15, shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to its principles of conflict of laws.
15. DISPUTE RESOLUTION
i. All disputes arising out of or in relation to this Agreement, including disputes relating to the interpretation of the Agreement and this clause shall be finally settled using the arbitration services of Kleros’s blockchain arbitration platform.
ii. The arbitration shall be seated in Delaware.
iii. Prior to invoking arbitration on Kleros, parties must strive to resolve the dispute through negotiation. If the dispute has not been resolved within 45 days of the delivery date of the notice notifying the other party of the dispute, arbitration may be initiated.
iv. In the event any issue arising out of in relation to this Agreement is not arbitrable, the same shall be submitted to the exclusive jurisdiction of Delaware.
16. SEPARABILITY
If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
17. INDEMNITY
The Owner shall indemnify the Creator against any losses, liabilities, judgements, arbitrator awards, settlements and damages, arising out of any third party suits, actions, claims, demands or similar proceedings, in connection with (i) breach of this Agreement (ii) unauthorised use of NFT or Art (iii) unauthorised use of NFT or Art by third parties or Fractional NFT Owner, in relation to transfer of Fractional NFT or assignment of rights by the Owner to such Fractional NFT Owners or third parties.
18. RIGHT OF REVISION
The Creator may make changes to this Agreement from time to time. After any change has been made, the amendment shall be republished on the Website. Each amended agreement shall contain the ‘Last Updated’ date, and the version number. Your continued access and use of the NFT, Fractional NFT or its Art, after the Agreement has been updated, will constitute your binding acceptance of the updates.