Kodamara NFT and Kodamara Art License Terms

Last Updated: April 17, 2024

These terms (“Terms”) are a legally binding agreement by and between Faraway, Inc. (“Faraway,” “we” or “us”), a Delaware corporation, and any holder of a Kodamara NFT (as defined below) (“you” or “Holder”), governing the parties’ rights and obligations with respect to Kodamara NFTs and Kodamara Art (as defined below). By engaging with a Kodamara NFT Smart Contract and/or being a Holder of a Kodamara NFT, you are agreeing to these Terms. If you do not agree, you may not engage with a Kodamara NFT Smart Contract and/or be a Holder of a Kodamara NFT.

IMPORTANT NOTICE REGARDING ARBITRATION: BY ENGAGING WITH A KODAMARA NFT SMART CONTRACT AND/OR BEING A HOLDER OF A KODAMARA NFT, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND Faraway THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 11 (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) 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.

1. ORIGIN STORY AKA DEFINITIONS

  • (a) “Additional Features” are any supplementary features, objects, traits, or other elements that Faraway, or third parties authorized by Faraway, make available to be depicted on top of, as a new layer of, to be situated around, or otherwise to be added to, Kodamara Art. Additional Features may include gear, jewelry, or clothing to be worn by or displayed on a Kodamara, or shapes, objects, creatures or characters that may surround a Kodamara.
  • (b) “Kodamara” is a fictional creature, created and commonly referred to by Faraway as a Kodamara, that “roams” in Faraway’ metaverse Otherside.
  • (c) “Kodamara Art” is any artwork that the Kodamara Smart Contract has at any time associated with a Kodamara NFT, including Original Kodamara Art, any Additional Features, and any Updated Kodamara Art.
  • (d) “Kodamara NFT” is a non-fungible token minted by, from or using, the Kodamara Smart Contract.
  • (e) “Kodamara Smart Contract” is a smart contract deployed to the Ethereum blockchain address 0x56e6F1BFFde5DCcd9A183585cE31f2902FC52707, or such other smart contract(s) as designated by Faraway from time to time in its sole discretion, including any replacement, upgrade, or successor smart contract(s) that Faraway may designate in its sole discretion.
  • (f) “Original Kodamara Art” is, with respect to each Kodamara NFT, the unique digital artwork that was associated with such Kodamara NFT at the time of minting, which depicted a Kodamara.
  • (g) “Updated Kodamara Art” is Kodamara Art as modified by any Additional Features.
  • (h) “Your Derivative Kodamara Work” shall have that meaning set forth in section 2. (c) below.
  • (i) “Your Kodamara Art” is the Kodamara Art that the Kodamara Smart Contract associates with Your Kodamara NFT.
  • (j) “Your Kodamara NFT” is the Kodamara NFT that the Kodamara Smart Contract records as being owned by your digital wallet.
  • (k) “Your Original Kodamara Art” is the Original Kodamara Art that the Kodamara Smart Contract initially associated with Your Kodamara NFT and, thereafter, solely in the form made available to you by Faraway.
  • (l) “Your Updated Kodamara Art” is the Updated Kodamara Art that the Kodamara Smart Contract associates with Your Kodamara NFT.

2. OWNERSHIP

  • (a) You Own Your Kodamara NFT. You hold the exclusive right to hold, sell, transfer, and execute blockchain transactions involving Your Kodamara NFT. Except for the Kodamara NFTs we own, Faraway has no right or ability to seize, freeze, or otherwise modify the ownership of any Kodamara NFT without authorization from the Holder; provided, the foregoing shall not restrict Faraway’ right to modify the Kodamara Art.
  • (b) We Own (but License to You) the IP in Your Kodamara Art. As between you and Faraway, Faraway owns all rights, title, and interest in and to the Kodamara 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 Kodamara Art associated with Your Kodamara NFT for as long as you hold Your Kodamara NFT.
  • (c) You Own the IP in Your Derivative Kodamara Works. As between you and Faraway, 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 Kodamara Art that is created by you, or is expressly authorized by you, in each case, in strict compliance with these Terms (including, but not limited to, Section 3(b)) (“Your Derivative Kodamara Work”); provided, however, that (i) we retain the copyright in the Original Kodamara Art underlying any of Your Derivative Kodamara Work(s); (ii) your use of any of Your Derivative Kodamara Work(s) 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 of Your Derivative Kodamara Work(s) after the License Term may require a license from the current owner of the Kodamara NFT; and (iv) the creation and possession of any of Your Derivative Kodamara Work(s) complies in all respects with these Terms.
  • (d) Utility. Faraway may make certain utility, benefits, or entitlements (collectively, “Utility”) available from time to time to Holders of a Kodamara NFT, but these Terms do not confer any Utility except for the rights granted under the license below. Faraway makes no assurances of any Utility. Any Utility may be subject to other terms and conditions. Faraway will not be responsible in any manner for any Utility offered, or proposed to be offered by, any third party.

3. LICENSE

  • (a) Grant. Subject to your compliance with these Terms, upon lawfully acquiring Your Kodamara NFT and for so long as you hold Your Kodamara NFT (such date of acquisition as recorded by the Kodamara Smart Contract) (the “License Term”), Faraway 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 Kodamara Art and Your Updated Kodamara 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 long as you own Your Kodamara NFT; and (3) as part of a Faraway’ website or application, or the website or application of a third party approved in Faraway’ sole discretion, that permits the inclusion, involvement, or participation of Your Kodamara NFT; and

    • ii. a “Commercial License,” meaning an exclusive, universe-wide, royalty-free, sublicensable license to reproduce, distribute, and prepare derivative works created by you that are based upon, publicly display, publicly perform, transmit, and otherwise use and exploit, only Your Original Kodamara Art. The Commercial License is intended to be broad, enabling you to make both commercial and non-commercial uses of Your Original Kodamara 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 Kodamara Art (or any Additional Feature(s), 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 Kodamara Art or any Additional Features.

  • (b) Restrictions and Reservations.

    • i. Without limiting Sections 3(a)(i) and (ii), the above licenses extend only to Your Original Kodamara Art and Your Updated Kodamara 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 Kodamara Art and Your Updated Kodamara Art. Thus, for the avoidance of doubt, while the Commercial License allows you to create and exploit Your Derivative Kodamara Works, the Commercial License does not grant you rights in any individual layer, trait, feature, attribute, or other element of, or separate and apart from, Your Original Kodamara 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 Kodamara 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 Faraway’ or any third party’s trade names, brands, logos, trade dress, or trademarks (e.g., “Faraway,” “Kodamara”, or “Otherside”, all of which are, as between you and Faraway, expressly owned and reserved by Faraway or its licensors (collectively, "Faraway 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 Faraway or its licensors (as applicable).

    • iii. Any application to register a trademark for Your Original Kodamara Art must occur during the License Term and be based solely upon the actual use of Your Original Kodamara Art in commerce and solely for the goods or services in connection with which Your Original Kodamara 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 Kodamara Art on an “intent to use” basis or where you otherwise have not used Your Original Kodamara Art in commerce.

    • iv. You may not use Your Original Kodamara Art or Your Updated Kodamara 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 Kodamara Art or Your Updated Kodamara Art in a manner that violates applicable law.

    • vi. All rights not expressly granted herein are reserved by us.

  • (c) License Back to Faraway. You agree to grant, and hereby grant, to Faraway 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 Kodamara Art in connection with the marketing, promotion, distribution, sale and/or any other exploitation of the Kodamara NFTs or the Kodamara Art.

4. ENFORCEMENT

  • (a) Copyright Notices. You may include the following copyright notice with Your Kodamara Art: “Kodamaras © 2022 Faraway”, which Faraway 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 of Your Derivative Kodamara Work(s) 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 any of Your Derivative Kodamara Work(s), you may identify you or such other person you designate as the copyright owner of Your Derivative Kodamara Work(s), but must in all cases identify Your Original Kodamara Art as a preexisting work upon which Your Derivative Kodamara Work(s) 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 Kodamara Art, you agree that: (i) any such claim shall be based solely upon the unauthorized use of Your Original Kodamara Art, not other Kodamara Art—for example, on the ground that other Kodamara Art is substantially similar to Your Original Kodamara Art; and (ii) Faraway 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. Faraway has no obligation to support the resolution of, or resolve any, dispute that may arise between Kodamara NFT holders.

5. TRANSFERS

  • (a) No Decoupling. Except as expressly provided herein, ownership of a Kodamara 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 Kodamara NFT.

  • (b) Termination of License. Upon the transfer of Your Kodamara NFT to a new Holder, as recorded by the Kodamara 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 Kodamara 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 Kodamara Art (a “Published Work”), you may, except as set forth in Section 5(b), 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 Kodamara Art to create any new works or materials after the License Term. Thus, for example:

    • ◦ A digital series featuring Your Original Kodamara 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 Kodamara 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 Kodamara 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 Kodamara Art would require a license from the new Holder.

  • (d) Successor Kodamara NFTs. From time to time and in Faraway’ 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 Kodamara NFT (i.e., a non-fungible token that will be associated with Your Updated Kodamara Art) (a “Successor Kodamara NFT”). For the avoidance of doubt, Your Kodamara NFT will not become a Successor Kodamara NFT solely by way of the addition or inclusion of Additional Features with respect to Your Updated Kodamara Art. In connection with, and to be eligible for the mint, claim, receipt or redemption of, the Successor Kodamara NFT to Your Kodamara 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 Kodamara NFT then-existing, as Faraway shall determine and communicate to you from time to time. You may not be obligated to mint, claim, receive or redeem a Successor Kodamara NFT, but if you do, you agree to continue to be subject and bound by these Terms (or new terms that Faraway may designate in its sole discretion) with respect to your Successor Kodamara 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 Kodamara NFT or Kodamara 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 Faraway, its licensors, or any right of any third party;
  • (d) is not, and will not, execute a transaction involving a Kodamara NFT or Kodamara Art with any person who is (i) a restricted person (i.e., a person or entity (A) residing in, or citizen(s) of, located in, incorporated in, or have a registered office in any Restricted Territory (as defined below); or (B) listed on the OFAC Specially Designated Nationals, Blocked Person List, or any other consolidated prohibited persons list as determined by any applicable governmental authority (each such person or entity, a “Restricted Person”)), and (ii) not otherwise barred from transacting under these Terms or applicable law;
  • (e) does not and will not transact involving a Kodamara NFT or Kodamara Art on behalf of a legal entity, or for any unlawful purpose; and
  • (f) has and will have all rights necessary to grant to Faraway the license set forth in Section 3(c).

For the purposes of these Terms, “Restricted Territory” means any state, country, or other jurisdiction that is designated by the U.S. Secretary of State as a country supporting international terrorism, or to which U.S. nationals cannot lawfully engage in transactions as designated by the Office of Foreign Assets Control (“OFAC”), including Cuba, Iran, Democratic People’s Republic of Korea, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine. Without limiting the foregoing, we reserve the right, at any time, in our sole discretion, and without notice, to block transactions involving a Kodamara NFT from certain users, Holders, IP addresses or unique device identifiers; and

7. WARRANTY DISCLAIMERS

  • (a) EACH OF THE KODAMARA SMART CONTRACT, KODAMARA NFT AND KODAMARA ART IS PROVIDED OR MADE ACCESSIBLE “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, Faraway 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.
  • (b) EACH KODAMARA 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 KODAMARA NFT OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM BLOCKCHAIN, WHICH Faraway DOES NOT CONTROL.
  • (c) Faraway WILL NOT BE RESPONSIBLE OR LIABLE TO HOLDER FOR ANY LOSS IN CONNECTION WITH ANY KODAMARA SMART CONTRACT, KODAMARA NFT OR KODAMARA ART, AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO HOLDER FOR, ANY USE OF OR INABILITY TO ACCESS OR USE ANY KODAMARA SMART CONTRACT, KODAMARA NFT OR KODAMARA 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 ANYKODAMARA NFT OR KODAMARA ART; OR (VI) THE ACTS OR OMISSIONS OF ANY THIRD PARTY.
  • (d) EXCEPT AS OTHERWISE AGREED BETWEEN Faraway AND YOU SEPARATE AND APART FROM THESE TERMS, Faraway WILL NOT BE RESPONSIBLE TO ANY HOLDER FOR ANY LOSS IN CONNECTION WITH ADDITIONAL FEATURES, UPDATED KODAMARA ART IRRESPECTIVE OF WHETHER ANY SUCH MODIFICATION, OR IF NO MODIFICATION, OCCURS.
  • (e) Faraway WILL NOT BE RESPONSIBLE TO ANY HOLDER FOR ANY LOSS IN CONNECTION WITH ANY SUCCESSOR KODAMARA NFT OR OTHER REPLACEMENT OR UPDATE TO YOUR KODAMARA NFT, OR IF NO REPLACEMENT OR UPGRADE OCCURS.
  • (f) 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) Kodamara NFTs and Kodamara 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 Kodamara NFT, including to understand what previous and existing uses have been made of the Kodamara NFTs and Kodamara Art and how those uses may affect value, any purchase of a Kodamara NFT is at the purchaser’s own risk. Faraway is not responsible for verifying or providing information on how a Kodamara NFT or its Kodamara Art have been exploited. Additional documentation from a Kodamara NFT holder may be necessary or prudent.
  • (b) Faraway is not responsible for determining or paying any taxes that apply to any Holder’s purchase, sale, transfer, or exploitation of rights in each Kodamara NFT. As between the parties, Holder is responsible for determining what, if any, taxes apply to such transactions.
  • (c) Transactions involving Kodamara NFTs and Kodamara 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 Faraway 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.

9. INDEMNITY

Holder shall defend, indemnify, and hold Faraway, 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 Kodamara NFTs or Kodamara Art, whether or not such person personally purchased a Kodamara 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 the foregoing must be approved by Faraway 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 KODAMARA NFT OR KODAMARA ART, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Faraway 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 KODAMARA NFT, HOLDER ACKNOWLEDGES THAT THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Faraway AND HOLDER.

11. DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS

PLEASE READ THIS SECTION 11 CAREFULLY BECAUSE IT MAY REQUIRE YOU AND Faraway TO ARBITRATE CERTAIN DISPUTES AND CLAIMS ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU AND WE CAN SEEK RELIEF FROM EACH OTHER. This Section 11 (Dispute Resolution and Agreement to Arbitrate on an Individual Basis) shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in these Terms.

By agreeing to these Terms, and to the extent permitted by applicable law, you and Faraway agree that any and all past, present and future disputes, claims or causes of action between you and Faraway arising out of or relating to these Terms or the Services, the formation of these Terms or any other dispute between you and Faraway or any of Faraway's licensors, distributors, suppliers or agents, and whether arising prior to or after your agreement to this Section 11 (collectively, "Dispute(s)"), will be governed by the procedure outlined below. You and Faraway further agree that any arbitration pursuant to this Section 11 shall not proceed as a class, group or representative action.

  • (a) We Both Agree To Arbitrate. By agreeing to these Terms, and to the extent permitted by applicable law, you and Faraway each and both agree to resolve any Disputes – including any Dispute concerning the enforceability, validity, scope or severability of this agreement to arbitrate – through final and binding arbitration as discussed herein.

  • (b) Exceptions. As limited exceptions to Section 11(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; (ii) we each retain the right to seek injunctive or other equitable relief from a court as authorized in Section 13 solely to prevent (or to enjoin) the infringement or misappropriation of our intellectual property rights; (iii) we each may bring an action in a court as authorized in Section 13 for temporary injunctive relief until an arbitrator has been empaneled and can determine whether to continue, terminate or modify such relief; and (iv) either party may move to compel arbitration pursuant to this Section 11 or to enforce an arbitral award issued hereunder, in a court as authorized in Section 13 or in any other court of competent jurisdiction.

  • (c) Conducting Arbitration and Arbitration Rules. You and Faraway agree that JAMS ("JAMS") will administer the arbitration under its Streamlined Rules in effect at the time arbitration is sought ("JAMS Rules"). Those rules are available at www.jamsadr.com. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules. You and Faraway further agree that, unless and only to the extent prohibited under JAMS Rules, the arbitration will be held in New York, New York, or, at your election, will be conducted telephonically or via other remote electronic means. The JAMS Rules will govern payment of all arbitration fees. The arbitrator shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules (or JAMS Comprehensive Rules, as applicable per below), and we will not seek to recover the administration and arbitrator fees we are responsible for paying unless the arbitrator finds your Dispute is frivolous.

  • (d) Proceedings Requiring Three Arbitrators. Notwithstanding any language to the contrary in Section 11(c), if a party either seeks a monetary award in excess of One Million Dollars ($1,000,000) or seeks an equitable form of relief that would significantly impact other Faraway users, in each case as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators and take place pursuant to the JAMS Comprehensive Arbitration Rules and Procedures (“JAMS Comprehensive Rules”). Each party shall select one neutral arbitrator, with the third neutral arbitrator selected in accordance with the JAMS Comprehensive Rules. That third arbitrator shall serve as chair of the arbitral panel and must be a retired judge with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 11(d) shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or through the JAMS selection process – participate in the arbitral panel. You and Faraway agree that any award issued by a three-arbitrator panel may be appealed in accordance with the JAMS Optional Arbitration Appeal Procedures at either party’s election.

  • (e) Batch Arbitration. To increase efficiency of resolution, in the event twenty-five (25) or more similar arbitration demands against Faraway, presented by or with the assistance of the same law firm or organization, are submitted to JAMS in accordance with the rules described above within a thirty (30) day period, JAMS shall consolidate those arbitrations as contemplated in the JAMS Rules by (a) grouping the arbitration demands into batches of no more than twenty-five (25) demands per batch (plus, to the extent there are fewer than twenty-five (25) arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (b) providing for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch. For avoidance of doubt, consolidation does not require that all arbitrations in a single batch be decided the same, nor does it impair your right to present any evidence or argument that you think particular to your case, so long as consistent with JAMS Rules. You agree to cooperate in good faith with Faraway and JAMS to implement such a batch approach to resolution and fees.

  • (f) Class Action and Collective Arbitration Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR Faraway SHALL BE ENTITLED: TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES; TO PARTICIPATE IN ANY GROUP, CLASS, COLLECTIVE OR MASS ARBITRATION OR LITIGATION; TO ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY; OR OTHERWISE TO SEEK TO RECOVER FOR LOSSES INCURRED BY A THIRD-PARTY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THESE TERMS, IN THE EVENT ALL OR ANY PORTION OF SECTIONS (D), (E) OR (F) OF THIS SECTION 11 (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) ARE FOUND TO BE INVALID OR LESS THAN FULLY ENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION 11 (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) MAY BE DEEMED VOID AND AS HAVING NO EFFECT FOR PURPOSES OF THAT DISPUTE UPON EITHER PARTY'S ELECTION.

  • (g) Severability. With the exception of any of the provisions in Section 11(f) of these Terms (“Class Action and Collective Arbitration 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.

12. AMENDMENTS

Faraway reserves the right to clarify or amend these Terms by publicly publishing a new version of them, including, but not limited to, on https://lotm.gg/license/kodamara.

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 Faraway each waive any objection to jurisdiction and venue in such courts.

14. MISCELLANEOUS

  • (a) Each of the Personal License and Commercial License applies only to the Kodamara NFT on the blockchain that Faraway, 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 Kodamara NFTs, only the non-fungible token recorded on the blockchain designated by Faraway 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 Faraway 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 Kodamara NFTs and Kodamara 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.
  • (h) The headings to sections of these Terms are for convenience or reference only and do not form a part of these Terms and will not in any way affect its interpretation.
  • (i) Neither party will be afforded or denied preference in the construction of these Terms, whether by virtue of being the drafter or otherwise.
  • (j) For purposes of these Terms, the words and phrases “include,” “includes,” “including,” and “such as” are deemed to be followed by the words “without limitation”.
  • (k) Owner may give notice to Faraway by contacting Faraway at [email protected]. Notice is effective upon receipt.
  • (l) The parties have agreed to contract electronically and, accordingly, electronic signatures or any other forms of acceptance permitted by law, will be given the same effect and weight as original signatures.