AGREEMENT
This License Agreement (this “Agreement”) is made and entered into by and between Rock Garden, Inc., a Utah Corporation (“Rock Garden” or “us”) on the one hand and any owner of any Rock Garden NFT (“RGFT”) (as defined below) (“you” or “Collector”). For purposes of this Agreement, the parties may collectively be referred to as the “Parties” or individually as a “Party”. By purchasing, owning or holding an RGFT, you do hereby acknowledge that you have carefully read and have knowingly and voluntarily agreed to the terms set forth in this Agreement.
1. Definitions.
(a) “Rock Garden Founders Token”, or “RGFT”, shall refer to a non-fungible token (“NFT”) purchased from mint.rockgarden.io that at issuance contains images of Art and grants its owner certain Perks.
(b) “Art” shall be defined as the image that is embodied into the RGFT.
(c) “Perks” shall be defined below.
(d) “Airdrop” shall be defined below.
2. Ownership of RGFT. Upon the purchase of an RGFT, (the “Collector”) shall own the rights to that RGFT and, subject to the terms of this Agreement, shall have the right to sell, transfer, assign, convey or otherwise dispose of the RGFT. Notwithstanding the language in this section, Collector acknowledges and agrees that Collector shall have no ownership interest to the RGFT Art or Rock Garden.
3. Smart Contract Enabled. RGFT are non-fungible Ethereum-based tokens that use smart contracts on the Ethereum blockchain (“Smart Contracts”). The Ethereum blockchain provides an immutable ledger of all transactions that occur on the blockchain. This means that all RGFT are outside of the control of any one party, including Rock Garden, and are subject to many risks and uncertainties. Rock Garden neither owns nor controls MetaMask, WalletConnect, the Ethereum network, your browser, or any other third party site, product, or service (including third party wallets or marketplaces) that you might access, visit, or use for the purpose of enabling you to use the Services or to purchase, list, auction, or sell RGFT (“Transaction”), and that, except with respect to transferring control of a RGFT to the initial Collector through the Services (“Initial Collector”), Rock Garden has no responsibility with respect to any Transaction. Rock Garden will not be liable for the acts or omissions of any third parties, nor will Rock Garden be liable for any damage that you may suffer as a result of your transactions or any other interaction with any third parties. You understand that your Ethereum public address will be made publicly visible whenever you engage in a Transaction. Aside from transferring control of the RGFT to the Initial Collector, Rock Garden has no control over the transfer, storage, ownership or maintenance of the RGFT.
4. Perks. A Collector (as defined below) of a RGFT may receive special perks, experience, or opportunities as determined by Rock Garden in its sole discretion (“Perks”) after RGFT are first made available for sale (i.e., dropped) by Rock Garden. Rock Garden does not make any representation or guarantee that any Collector will receive any Perks or achieve any particular outcome as a result of owning any RGFT except per the RG-FP_NFT benefits defined in the section directly below (Section 5). Rock Garden reserves the right, at its sole discretion, to restrict, limit, or deny any Perks to any Collector, including to limit the period of time when a Perk is available, for any reason, at any time. Perks are not intended to be an endorsement of any project, creator, NFT, individual or any other thing, and Rock Garden makes no recommendation and provides no investment advice in connection with any Perks or otherwise as a result of holding or owning the RGFT.
5. RGFT Perks include:
6. License. Non-Commercial Use. Subject to Collector’s adherence to the terms and conditions set forth in this Agreement, Rock Garden does hereby grant to Collector, for so long as Collector retains ownership of a RGFT (as recorded on the relevant blockchain), a non-exclusive, worldwide, royalty-free, non-sublicensable, revocable license, to use, copy and display the RGFT Art, for the following purposes: (i) for Collector’s personal, non-commercial use, including archive copies and physical print outs and (ii) to sell or otherwise transfer the RGFT, in accordance with the terms and conditions set forth in this Agreement.
7. No Rock Garden Membership. Holding a RGFT conveys no rights to, ownership of, or relationship with Rock Garden except as expressly provided in this Agreement.
8. No Investment Advice; Investment Risks
The information on this Site and any information provided in connection with the Services or Perks are provided to RGFT owners only and for information only and do not constitute, and should not be construed as, investment advice or a recommendation to buy, sell, or otherwise transact in any digital asset including any products or services or an invitation, offer or solicitation to engage in any investment activity with respect to any digital asset.
The information on this Site and any information provided in connection with the Perks provided to RGFT owners are provided solely on the basis that you will make your own investment and trading decisions, and Rock Garden does not take account of any person's investment objectives, particular needs, or financial situation. In addition, nothing on this Site or any information provided in connection with the Perks provided to RGFT owners shall, or is intended to, constitute financial, legal, accounting or tax advice. It is strongly recommended that you seek professional investment advice before making any investment decision. Any investment decision that you make should be based on an assessment of your risks in consultation with your investment adviser.
9. Reservation of Rights. (a) General. Rock Garden does hereby reserve all rights that are not expressly granted to Collector in this Agreement. Collector acknowledges and agrees that Rock Garden owns and shall retain all ownership and intellectual property rights in and to Rock Garden and RGFT Art. Collector shall not permit any third party to modify the RGFT Art, except as expressly permitted herein, or use the RGFT Art as a brand or trademark or to advertise, market, or sell any product or service except to advertise, market or sell any Merchandise or works created in connection therewith. (b) No Rights to Intellectual Property. For purposes of clarity, the grant of licenses set forth in this Agreement does not include any right, title, interest or license in or to any copyright, trademark or service mark of Rock Garden. Collector agrees to not use (for any purposes outside of this Agreement) or attempt to register any asset, including any domain names, social media profiles or any accounts that contains or incorporates, in whole or in part, any artwork, name, imagery, music, content, media or mark that may be confusingly similar to Rock Garden’s copyrights, trademarks or service marks.
10. Representations & Warranties. Collector represents and warrants that Collector: (i) is of the age of majority in Collector’s jurisdiction, (ii) has the legal capacity to enter into this Agreement, (iii) shall only use the RGFT and RGFT Art in accordance with the terms of this Agreement and only for lawful purposes, (iv) shall not use the RGFT or RGFT Art in a manner which violates or infringes upon any law, regulation or intellectual property or privacy rights of Rock Garden or any third party, and (v) shall not transfer an RGFT to any transferee located in a jurisdiction that is subject to any government embargoes, restrictions or prohibitions.
11. Transfers. In the event Collector lawfully, and in accordance with the terms and conditions of this Agreement, transfers an RGFT to a third party, then such transferee, by purchasing, accepting, accessing or otherwise using the RGFT or RGFT Art, shall be deemed to have accepted all of the terms of this Agreement as a “Collector” hereof. In the event of such transfer, Collector does hereby expressly agree to provide notice to the transferee of this Agreement, including the terms, conditions and restrictions set forth herein. Collector further acknowledges and agrees that any subsequent transactions of an RGFT shall be effected on the relevant blockchain network that is governing the RGFT, and Collector shall be required to make or receive payments exclusively through Collector’s cryptocurrency wallet.
12. Disclaimers. THE RGFT ARE PROVIDED TO Collector "AS IS" AND "AS AVAILABLE", Rock Garden DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE. Rock Garden DOES NOT GUARANTEE THAT THE NFT MARKETPLACE WILL ALWAYS BE SAFE, SECURE OR ERROR-FREE OR THAT THE NFT MARKETPLACE WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS. Rock Garden IS NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND Collector DOES THEREBY RELEASE Rock Garden FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM Collector MAY HAVE AGAINST ANY SUCH THIRD PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THESE EXCLUSIONS MAY NOT APPLY TO Collector. Collector UNDERSTANDS THAT Rock Garden CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING OR OTHERWISE ACCESSIBLE FROM THE INTERNET WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. USER IS RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY Collector’S PARTICULAR REQUIREMENTS FOR ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO THE SITE FOR THE RECONSTRUCTION OF ANY LOST DATA. Rock Garden DOES NOT ASSUME ANY RESPONSIBILITY OR RISK FOR Collector’S USE OF THE INTERNET. Rock Garden DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE RGFT ART IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE RGFT OR RGFT ART MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND Rock Garden MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. Collector, AND NOT Rock Garden, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE RGFT. Rock Garden DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RGFT’S OR RGFT ART’S APPROPRIATENESS OR AUTHORIZATION FOR USE IN ALL COUNTRIES, STATES, PROVINCES, COUNTY OR ANY OTHER JURISDICTIONS. Rock Garden MAKES NO WARRANTY THAT THE RGFT WILL MEET Collector’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Rock Garden MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ARISING OUT OF OR RELATED TO THE RGFT ART. Rock Garden DOES NOT CONTROL THE DECENTRALIZED LEDGER IN WHICH ANY TRANSFER OF TITLE RELATED TO AN RGFT MAY BE CONTAINED IN. Rock Garden DOES NOT GUARANTEE THE IDENTITY, LEGITIMACY OR AUTHENTICITY OF ANY ASSETS THAT ARE PURCHASED THROUGH THE NFT MARKETPLACE AND DOES NOT GUARANTEE THE EFFECTUATION OF ANY TRANSFER OF TITLE OR RIGHTS IN ANY RGFT. Rock Garden IS NOT RESPONSIBLE ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE RGFT. Rock Garden IS NOT RESPONSIBLE FOR DAMAGES ARISING OUT OR IN CONNECTION WITH ANY REPORT BY DEVELOPERS OR REPRESENTATIVES OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE RGFT, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT. Rock Garden IS NOT RESPONSIBLE FOR REPAIRING, SUPPORTING, REPLACING OR MAINTAINING THE WEBSITE OR SERVER THAT IS HOSTING THE RGFT ART
13. Limitation of Liability. IN NO EVENT WILL Rock Garden OR ITS PROVIDERS, SUPPLIERS, ADVERTISERS AND SPONSORS, BE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR, AND YOU HEREBY KNOWINGLY AND EXPRESSLY WAIVE ALL RIGHTS TO SEEK, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (even if Rock Garden has been advised of the possibility of such damages), AND ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED, ARISING OUT OF OR IN CONNECTION WITH AN RGFT OR RGFT ART, EVEN IF Rock Garden HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM IS BASED UPON ANY CONTRACT, TORT, OR OTHER LEGAL OR EQUITABLE THEORY. WITHOUT LIMITING THE FOREGOING, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT Rock Garden WILL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED CRYPTOCURRENCY WALLET FILES; (IV) UNAUTHORIZED ACCESS TO THE RGFT; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST BLOCKCHAIN NETWORK UNDERLYING THE RGFT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE ALLOCATION OF RISK BETWEEN US IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US. OUR AGGREGATE LIABILITY ARISING OUT OF THESE TERMS OR THE USE OF THE SERVICE WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO THESE MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL ATTORNEYS' FEES BE AWARDED OR RECOVERABLE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY EXPRESSLY WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
14. Assumption of Risk. Collector does hereby expressly accept and acknowledge all risk and responsibility associated with the: (i) determining, calculating and paying any taxes that may be applicable to Collector’s purchase, sale, or transfer of an RGFT, (ii) storing, sending, receiving or transfer of any crypto currency assets that is not controlled by Rock Garden, and (iii) use of any internet based digital asset, including the use of any hardware, software or internet connections.
15. Links to Third Party Websites or Resources. The use or access of an RGFT may contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other content owned, operated, licensed, or controlled by third parties. Rock Garden has no control over any third party sites or any products or services offered by any third parties. Rock Garden is not responsible for and does not endorse the content, products, services, privacy or practices of any such third party. Nor is Rock Garden responsible for the availability of such third party sites, products or services.
16. Termination. Collector’s licenses to the RGFT shall automatically terminate and all rights shall revert to Rock Garden if at any time Collector breaches any term of this Agreement or if Collector engages in any unlawful activity related to the RGFT. Upon the termination, discontinuation or cancellation of Collector’s licenses to the RGFT Art; Rock Garden may, in its sole discretion, disable Collector’s access to the RGFT Art and Perks. Furthermore, Collector shall delete, remove, or otherwise destroy any back up or digital or physical copies of the RGFT Art.
17. Indemnity. Collector shall indemnify and hold Rock Garden, as well as their members, managers, officers, directors, service providers, contractors and employees harmless, against any and all expenses and/or losses, including reasonable attorney fees, incurred by Rock Garden in connection with any claims of any kind, that result directly or indirectly from Collector’s activities, actions, inactions, misrepresentations, breaches or falsities in connection with this Agreement. Such claims shall include, without limitation, claims in respect of any violation of law.
18. Governing Law and Forum Choice. This Agreement shall be governed and enforced under the laws of the State of Utah, without regard to conflicts of law principles. The Parties agree to the exclusive personal jurisdiction and venue in the state and federal courts in the State of Utah and hereby waives any jurisdiction, venue, forum nonconvenient, or similar defenses.
19. Dispute Resolution. THE PARTIES CONSENT AND STIPULATE THAT THE EXCLUSIVE VENUE OF ANY ARBITRATION PROCEEDING AND OF ANY OTHER PROCEEDING UNDER THIS AGREEMENT SHALL BE SALT LAKE COUNTY, UTAH (the “Agreed Venue”). For this purpose, the Parties also expressly consent to personal jurisdiction in the Agreed Venue. Any controversy or claim arising out of or relating to the Rock Garden, the RGFT, or this Agreement shall first be resolved by good faith discussions between the Parties. If the dispute is unable to be resolved, the dispute must be settled by arbitration administered by the American Arbitration Association. The location of the arbitration proceeding shall be Salt Lake County, Utah. The number of arbitrators shall be three. Utah law shall apply. Judgment of the award may be entered in any competent court. Except as may be required by law, neither a Party nor its representatives may disclose the existence, content, or results of any arbitration without the prior written consent of both parties. The arbitrators shall have no authority to award punitive damages or injunctive relief. The cost of the arbitration proceeding shall be paid by the unsuccessful party. The arbitrators will be entitled to award the arbitration fees and expenses as damages in his/her discretion. This section shall survive the termination or cancellation of this Agreement. In the event that such controversy or claim results in a lawsuit, the venue of such lawsuit shall be Salt Lake County, Utah. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
20. Miscellaneous. This Agreement shall transfer to and endure to the benefit of and be binding upon the Parties and their respective transferees, successors and assigns. This Agreement sets forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement. This Agreement may not be modified, amended, waived or supplemented except as provided herein. Rock Garden may amend this Agreement at its sole discretion, provided however that Rock Garden shall use commercially reasonable efforts to provide notice of any material changes made to this Agreement. No failure or delay on the part of Rock Garden in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the Parties. This Agreement shall not be construed as granting either Party with any right or authority to act for or on behalf of the other Party. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person other than the Company, the parties hereto and their respective heirs, personal representatives, legal representatives, successors and assigns, any rights or remedies under or by reason of this Agreement. Each Party hereby expressly acknowledges that it has been advised to seek its own separate independent legal counsel for advice with respect to this Agreement, and that no counsel to any Party hereto has acted or is acting as counsel to any other Party hereto in connection with this Agreement. This Agreement is the joint product of the Parties and each provision hereof has been subject to the mutual consultation, negotiation and agreement between the Parties. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.