End User Purchase and License Agreement
Last Updated: September 22, 2022
This END USER PURCHASE AND LICENSE AGREEMENT constitutes a legally binding agreement (“Agreement”) between you (“Purchaser”, “You”, “Your”) and Build-A-Bear Workshop, Inc. (“BABW”). This Agreement applies to Your purchase or receipt, directly or indirectly, of any Digital Collectibles and/or associated NFTs originally offered or sold by or on behalf of BABW (the “BABW NFT Program”).
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES WHAT YOU ARE BIDDING ON OR PURCHASING IN CONNECTION WITH THE BABW NFT PROGRAM. THIS AGREEMENT CONTAINS IMPORTANT TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO:
IF YOU DO NOT ACCEPT ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT PARTICIPATE IN THE PROGRAM. |
1. Description of the Program and Eligibility to Participate.
Build-A-Bear Workshop has partnered with SocialSweet Inc. (“Sweet”) to create a digital marketplace for offering for sale or transfer non-fungible tokens (“NFTs”) associated with various digital goods (“Digital Collectibles”) for personal, non-commercial enjoyment. Examples of Digital Collectibles include collectible digital cards, and digital art or animations of bears and other characters. The NFTs are offered for sale either directly or in an auction format to potential Purchasers. The Purchaser of an NFT owns the NFT and may subsequently transfer the NFT to others as permitted by the blockchain networks and the terms of this Agreement. The owner of the NFT also owns certain limited license rights in the associated Digital Collectible, as described below, which automatically follow the ownership of the NFT, provided the new recipient accepts the terms of this Agreement and other applicable conditions are satisfied.
IT IS IMPORTANT TO UNDERSTAND THAT, ALTHOUGH THE NFT IS ASSOCIATED WITH A DIGITAL COLLECTIBLE, YOU DO NOT ACQUIRE ANY OWNERSHIP OF THE UNDERLYING COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS IN THE DIGITAL COLLECTIBLE. THE SCOPE OF THE LIMITED LICENSE RIGHTS YOU ACQUIRE EXPRESSLY EXCLUDE ANY RIGHT TO ANY COMMERCIAL USE OR EXPLOITATION OF THE DIGITAL COLLECTIBLE, AND CONSTITUTE ONLY A LIMITED, PERSONAL, NON-COMMERCIAL LICENSE, SUBJECT TO VARIOUS CONDITIONS AND USE RESTRICTIONS DESCRIBED IN MORE DETAIL BELOW.
To participate, You must be at least 18 years of age, and You must have not previously breached this Agreement or otherwise had a license to a Digital Collectible terminated, or lost Your user privileges. You also must accept and agree to all of the terms and conditions of this Agreement, including the arbitration and class action waiver provisions.
You represent and warrant that you are participating in the BABW NFT Program solely for Your personal entertainment and enjoyment purposes and not for purposes of any speculation, security, equity, or investment, nor for use of any Digital Collectibles or NFTs as a substitute for currency or a medium of exchange.
You represent and warrant that you will not portray or characterize Your participation in the BABW NFT Program, nor any Digital Collectibles or NFTs You acquire, as an opportunity to gain an economic benefit or profit, or as an investment, equity, security, or revenue-generating asset, or as an opportunity for speculation or future financial gain.
You understand and agree that You are not acquiring any equity or other ownership or profit-sharing interest in BABW, its affiliates, or any other enterprise as a result of acquiring any Digital Collectibles or NFTs hereunder.
If an NFT is sold with any additional benefits or perks (each a “utility,” collectively, “utilities”), each utility is valid and redeemable only by the original purchaser of the NFT, and only while the original purchaser owns the NFT. Once an NFT is subsequently transferred, all associated utilities are null and void and of no effect and cannot be redeemed by any party. To the extent of any physical products associated with an NFT, any transfer of such physical products from the NFT owner to any subsequent purchaser is entirely the responsibility of the NFT owner and BABW shall have no responsibility of any kind relating to the subsequent transfer of such physical product. Physical products may not be an exact replica of the Digital Collectible. If the original purchaser (i) does not respond to any communication from BABW within five (5) days of such communication; (ii) refuses the physical product and/or utility; and/or (iii) any communication to the purchaser regarding the physical product or utility is rejected or returned as undeliverable, the utility and/or physical product is null and void. Except where prohibited by law, NFT purchaser and any guests may be required to execute a liability and publicity release as a condition of receiving a physical product and/or utility.
2. Digital Collectibles (What You’re Buying).
Upon purchasing or acquiring an NFT minted via the BABW NFT Program, whether directly, by being the highest bidder in an auction, or acquiring such an NFT in a secondary transaction from a third party, You automatically acquire certain limited rights as follows.
You receive a worldwide, non-exclusive, non-transferable (except as specifically provided herein), royalty-free license to access, view, and perform, display, or otherwise experience (as applicable depending on the nature of the Digital Collectible) the Digital Collectible associated with the NFT, as-is and without modification or alteration, solely for Your own personal, non-commercial use and enjoyment, and for Your personal entertainment purposes only. This license is subject to additional limitations and conditions. You cannot, nor will you permit, allow, facilitate, or encourage others to do any of the following without the prior, express written consent of an authorized representative or agent of BABW:
modify the Digital Collectible in any way (except that you may convert the Digital Collectible to a different file format and/or crop the image if and only to the extent necessary to use the Digital Collectible as a personal avatar for on-line social media as otherwise permitted herein, provided that any such alterations do not result in any other changes to the design, attributes, or general appearance or impression of the Digital Collectible or otherwise result in the modified image violating any other restrictions of this Agreement);
use the Digital Collectible in connection with any commercial activity, including any advertisement, marketing, sales, or promotion related to any product or service, including as a influencer or reviewer;
use the Digital Collectible in connection with any political activity, lobbying, campaign, or otherwise;
create derivative works of or using the Digital Collectible, including in movies, videos, or any other forms of media, except for Purchaser’s own personal, non-commercial use and provided such use does not violate any other restrictions of this Agreement;
sell or offer for sale, or distribute or offer to distribute, whether for commercial gain or otherwise, any merchandise that includes, incorporates, contains, uses, or is otherwise based in whole or part on the Digital Collectible;
attempt to acquire any trademark, copyright, or other intellectual property rights, whether or not registered, in or to the Digital Collectible;
use the Digital Collectible in a manner that suggests association with content, whether text, images, videos, or other media, that depicts or promotes: (i) intoxicating beverages (e.g., hard liquor, beer, wine); (ii) tobacco, nicotine, or other drugs and controlled substances; (iii) firearms or weapons; (iv) pornography or sexual themes, including adult-oriented products, medical devices, or drugs; (v) death; (vi) slanderous or libelous content; (vii) vulgarity; (viii) gambling; (ix) violence against humans or animals, (x) hatred, intolerance, violence, cruelty, hate speech, discrimination, or bullying; (xi) investments or financial advice, including but not limited to the use of NFTs as an investment vehicle; (xii) illegal activities, including but not limited to materials that infringe or assist others to infringe on any copyright, trademark or other intellectual property rights; (xiii) unlawful, threatening, defamatory, obscene, misleading, or fraudulent activities; (xiv) crime or criminal activity; or (xv) content otherwise unsuitable for consumption by young children;
use the Digital Collectible in a manner that tends to, or is intended to, tarnish, dilute, disparage, impugn, or harm the reputation and/or goodwill of BABW or its employees, officers, directors, shareholders, or affiliates; and/or
use the Digital Collectible in a manner that tends to, or is intended to, cause or create a likelihood of confusion regarding the source or origin of a good or service, or the endorsement, sponsorship, affiliation, approval, or association of BABW with a good or service.
For example, you may use the Digital Collectible as your personal social media avatar, but you may not use it as a social media avatar in association with a business, non-profit organization, political campaign, or any other activity prohibited above.
You acknowledge that BABW owns all right, title and interest in and to the Digital Collectibles and all intellectual property rights therein, and that the license You acquire in the Digital Collectible is limited to those rights expressly stated above, as limited. Your personal license is non-exclusive and does not include any right to any royalties or any equitable or legal remedies related to use of the Digital Collectible by others. Among other things, You may not file, or threaten to file, any lawsuits or claims arising out of or relating to any use by others of the Digital Collectible or NFT, nor does BABW have any obligation to do so except in its sole and exclusive discretion. In the event BABW does elect to pursue any such enforcement activities, any damages, royalties, or other amounts recovered in connection with any such actions shall belong solely and exclusively to BABW.
You also acknowledge that while the NFT associated with a Digital Collectible is unique, the Digital Collectible may not be. Digital Collectibles may be offered or sold in lots or collections in which multiple purchasers can acquire an NFT associated with similar or identical Digital Collectibles. BABW reserves the right in its sole discretion to mint and sell additional NFTs in the future for any given Digital Collectible, and to create and issue NFTs for new Digital Collectibles that may be similar to the Digital Collectible associated with Your NFT. BABW shall have no liability to you of any kind related to any of the foregoing activities.
Your license rights are conditional upon full compliance with all terms and conditions of this Agreement, including the above restrictions. Your license automatically terminates without any further action or notice by BABW if you violate any term or condition of this Agreement, including but not limited to by using the Digital Collectible in excess of the license grant above or in violation of any of the restrictions above.
3. Transferring or Selling the NFT.
You have the limited right to sell or transfer the NFT to a third party, provided that all of the following conditions are met:
The transferee accepts in a legally enforceable writing all of the terms of this Agreement and all other applicable terms and conditions (e.g., the terms of use for the Sweet platform);
You have not, before the transfer or sale, violated or breached this Agreement or any other applicable legal terms (e.g., the terms of use for the Sweet platform) and Your license has not otherwise been terminated;
The new buyer/transferee provides to BABW current contact information, including a full legal name, mailing address, and a valid and current e-mail address;
That upon transfer, Your license terminates and is transferred to the new purchaser, and You immediately discontinue all use of the Digital Collectible and delete any archival copies in your possession or control;
You accept the smart contract applicable to the sale or transfer of the NFT, which may provide, for example and without limitation, that a portion of the revenues from Your sale be paid to and retained by BABW, its affiliates or contractors, or other third parties.
Your license rights are conditional upon full compliance with all of the above restrictions, and Your license automatically terminates if you sell, transfer, trade, donate, or otherwise dispose, or purport to sell, transfer, trade, donate, or otherwise dispose, of the NFT in any manner other than as permitted in this Section.
4. Disclaimer of Warranties & Limitation of Liability.
ALL DIGITAL COLLECTIBLES AND NFTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, BABW DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL BABW BE LIABLE TO YOU FOR ANY LOSS OR INJURY, PROPERTY DAMAGE, LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY FORM OF DIRECT OR INDIRECT DAMAGES, AND/OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION WHATSOEVER RELATED TO ANY DIGITAL COLLECTIBLE OR NFT, THE BABW NFT PROGRAM, OR ANY THIRD PARTY TECHNOLOGY OR SYSTEM, INCLUDING BUT NOT LIMITED TO ANY BLOCKCHAIN NETWORK OR THE SWEET PLATFORM.
YOU ACCEPT AND AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF A DISCLAIMING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BABW’S TOTAL AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED THE NET PROCEEDS ACTUALLY RECEIVED BY BABW IN CONNECTION WITH THE PARTICULAR NFT TRANSACTION GIVING RISE TO THE CLAIM.
5. Acknowledgments and Assumption of the Risk.
Conducting transactions on a blockchain, including, without limitation, buying or selling NFTs, is inherently risk. You acknowledge and accept all such risks and agree that BABW shall have no liability to you in connection with any losses you may experience arising out of relating to such risks. These include, without limitation: fraud; misrepresentation; sudden or unexpected changes in price or value; bugs or defects in code or smart contracts; failure of hardware, software, or network access; unavailability of particular web sites, third-party interfaces, technologies, or platforms; hacking or other unauthorized access to your computer or digital wallet; unrecoverable loss of your passwords or access codes to use your accounts or digital wallet; failure or defects in the blockchain network, including in third party interfaces to the blockchain; a Digital Collectible becoming unavailable or decoupled from its NFT, such as, without limitation, an outage, error, failure, or cessation of operations by the site host, or due to a claim of infringement.
Additionally, you acknowledge that the Digital Collectibles and associated NFTs are for personal entertainment purposes only, and for no other purpose, and are not offered or intended to be used an investment, security, or contract. The future value, if any, of the Digital Collectibles and associated NFTs is based solely on consumer interest and demand. There is no guarantee that the Digital Collectibles and associated NFTs will have, or retain, any particular value, or any value at all. There is no guarantee that any of the technologies required for the Digital Collectibles and associated NFTs to operate, such as the underlying blockchain network, digital wallet, the Sweet platform, or any third party interfaces relied upon to access and vie the Digital Collectible, will continue to function, or be permitted by law to continue to operate as currently constituted, for any future length of time. You alone are responsible for making an archival copy of Your Digital Collectible and BABW shall have no liability to you arising out of any loss of access to your Digital Collectible resulting from Your failure to do so.
6. Resolving Disputes.
All disputes between you and BABW relating in any way to the Digital Collectibles and/or associated NFTs shall be exclusively governed by the laws of the State of Missouri without regard to principles of conflicts of law.
Before You commence any legal proceeding against BABW, including arbitration as required herein, You agree to attempt to resolve any dispute relating in any way to the Digital Collectibles, associated NFTs, the BABW NFT Program, or this Agreement (a “Dispute”) by engaging in good faith negotiations. To commence these negotiations, you agree to providing written notice to BABW at the contact address below of the specific nature of the Dispute.
Address: Build-A-Bear Workshop, Inc.
Legal Department
1954 Innerbelt Business Center
St. Louis, MO 63114
BABW then has thirty (30) days to respond. If, both parties engage in good faith negotiations but cannot resolve the Dispute within ninety (90) days after receipt of Your notice, we may agree to mediate the Dispute or either party may submit the Dispute to arbitration as set forth below.
EXCEPT WHERE PROHIBITED, YOU AGREE THAT ALL DISPUTES, CLAIMS, CAUSES OF ACTION, AND LIABILITY YOU MAY ASSERT ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE DIGITAL COLLECTIBLES, THE NFTS, OR THE BABW NFT PROGRAM SHALL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION OR CLASS PARTICIPATION, AND EXCLUSIVELY BY BINDING AND FINAL ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ST. LOUIS COUNTY, MISSOURI, AND ANY AND ALL RESULTING CLAIMS, JUDGMENTS, AND AWARDS SHALL BE LIMITED TO ACTUAL OUT-OF-POCKET COSTS INCURRED, BUT IN NO EVENT SHALL ATTORNEYS’ FEES BE RECOVERABLE BY ANY PARTY. THE ARBITRATION WILL BE GOVERNED BY THE FEDERAL ARBITRATION ACT.
Both Parties agree that, regardless of any statute or law to the contrary, any claim or cause of action arising from or relating to this Agreement must be filed within one (1) year after such claim or cause of action accrued, or will be forever barred.
Notwithstanding the foregoing, nothing in this Agreement shall be deemed or construed as limiting or constraining BABW’s right to take legal, equitable, or administrative action in any forum to enforce or protect its business, assets, or rights, including but not limited to by seeking restraining orders or injunctions, issuing copyright takedown notices, availing itself of statutory remedies and injunctive relief to protect its intellectual property and business interests, filing lawsuits, or issuing subpoenas (for example,. to conduct discovery to identify defendants engaged in unlawful or unauthorized use of BABW’s intellectual property or other assets).
7. Changes to this Agreement.
BABW may make changes to this Agreement from time to time by posting or making available the new version of this Agreement available on this website. Please check this page periodically for any such changes, and especially if you have recently acquired an NFT from an initial Purchaser, and before attempting to sell, trade, or transfer the NFTs, as the applicable terms and conditions for such sales or transfer may have changed since You acquired your NFT. Any changes to this Agreement will apply on the date that they are made. By continuing to access and use your Digital Collectible and/or associated NFT after this Agreement has been updated, you conclusively accept any new or updated provisions.
8. Miscellaneous.
If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as to best reflect the original intent of the parties. This Agreement constitutes the sole entire agreement between the parties pertaining to the subject matter hereof, and supersedes all oral negotiations and prior writings with respect to the subject matter within this Agreement.