BETTER BUDDIES TERMS
Last Updated: January 9, 2023
Better Buddies is a collection of unique digital collectable characters represented by non-fungible tokens (such tokens, “Better NFTs”) minted by a smart contract deployed to the Ethereum blockchain and created by Spacecraft Earth LLC (the “Better Smart Contract”). The Better Smart Contract associates each Better NFT with its Underlying Art. “Underlying Art” includes all artwork, pictures, images, photographs, designs, graphics, icons, characters, or any other form of art now known or invented in the future.
These terms (“Terms”) are a legally binding agreement by and between Spacecraft Earth LLC, a Delaware limited liability Company (“Spacecraft,” “we” or “us”), and any owner of a Better NFT (“you” or “Owner”) governing the parties’ rights and obligations with respect to Better NFTs and the related Underlying Art.
a. You Own Your Better NFT. When you own a digital wallet that holds a Better NFT, as recorded by the Better Smart Contract, you hold the exclusive right to hold, sell, transfer, and execute blockchain transactions involving that Better NFT (“Your Better NFT”). Except for the Better NFTs we own, Spacecraft has no right or ability to seize, freeze, or otherwise modify the ownership of any Better NFT.
b. We Own (but License to You) the IP in Your Underlying Art. Spacecraft owns all rights, title, and interest in and to the Underlying Art including any and all copyrights, trademarks, and other intellectual property rights therein (“IP”). However, we grant you the License (defined below) to use the Underlying Art associated with Your Better NFT (“Your Underlying Art”) for as long as you hold Your Better NFT.
c. You Own the IP in Your Derivative Better Works. As between you and Spacecraft, you own all rights, title and interest in and to any “derivative work,” as defined by the United States Copyright Act, based upon Your Underlying Art created during the License Term (defined below) (“Derivative Better Work”); provided, however, that (i) we retain the copyright in the Underlying Art underlying any Derivative Better Work; (ii) your use of any Derivative Better Work during and after the License Term is subject to these Terms; and (iii) your use of any Derivative Better Work after the License Term may require a license from the current owner of the Better NFT.
d. Utility. Owners may be offered utility, benefits, or entitlements (collectively, “Utility”) from time to time, but these Terms do not confer any Utility except as granted by the License. Spacecraft makes no assurances of any Utility. Any Utility may be subject to other terms and conditions. Spacecraft will not be responsible in any manner for any Utility offered by any third party.
a. Grant. Subject to your acceptance of, and compliance with, these Terms, upon lawfully acquiring Your Better NFT and, for so long as you hold Your Better NFT (both dates as recorded by the Betters Smart Contract) (the “License Term”), Spacecraft grants to you a non-exclusive, universe-wide, royalty-free, sublicensable license to reproduce, distribute, prepare derivative works based upon, publicly display, publicly perform, transmit, and otherwise use and exploit, Your Underlying Art (the “License”). The License is intended to be broad, enabling you to make both commercial and non-commercial uses of Your Underlying Art, in any and all media, whether existing now or invented later, subject only to the restrictions set forth below.
b. Restrictions and Reservations.
i. The License extends only to Your Underlying Art—meaning, the complete selection and arrangement of all base layers, features, attributes, and other elements that comprise Your Underlying Art. Thus, while the License allows you to create and exploit Derivative Better Works, the License does not grant you rights in any individual element of Your Underlying Art, or a license to exploit any individual element separate and apart from Your Underlying Art. For example, the License allows you to create three-dimensional renditions of, and to add new clothing to, Your Underlying Art, but does not allow you to extract individual features (e.g., hair, accessories) for use in a separate work.
ii. The License does not grant you any rights in or to Spacecraft’s (or any other) trade names, brands, trade dress, or trademarks, all of which are expressly reserved to Spacecraft (collectively, “Spacecraft TM Rights”). You hereby agree that any Spacecraft TM Rights you purport to acquire, together with any associated goodwill, shall automatically, immediately, and at your expense be assigned to Spacecraft. For the sake of clarity, the Spacecraft TM Rights do not include Your Underlying Art, in which you may acquire trademark rights through the exercise of your rights in accordance with, and subject to, these Terms and applicable law.
iii. Any application to register a trademark in Your Underlying Art must occur during the License Term and be based solely upon the actual use of the Underlying Art in commerce and solely for the goods or services in connection with which Your Underlying 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 Underlying Art on an “intent to use” basis or where you otherwise have not used Your Underlying Art in commerce.
iv. You may not use Your Underlying 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 Underlying Art in a manner that violates applicable law.
vi. All rights not expressly granted herein are reserved by us.
c. License Back to Spacecraft. You grant to Spacecraft an irrevocable, perpetual, non-exclusive, universe-wide, royalty-free, sublicensable license to publicly display and otherwise use Your Underlying Art alongside other Underlying Art.
a. Copyright Registrations. Any application to obtain a copyright registration in Your Underlying Art shall identify “Spacecraft Earth LLC” as the copyright owner of Your Underlying Art. Any application to obtain a copyright registration in a Derivative Better Work may identify you or such other person you designate as the copyright owner but shall identify Your Underlying Art as a preexisting work upon which the Derivative Better Work is based.
b. Actions. To the extent applicable law authorizes you to bring a claim for infringement based upon the unauthorized use of Your Underlying Art, you agree that: (i) any such claim shall be based solely upon the unauthorized use of Your Underlying Art, not other Underlying Art—for example, on the ground that the other Underlying Art is substantially similar to Your Underlying Art; and (ii) Spacecraft 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.
c. Disputes Among Owners. Spacecraft has no obligation to support the resolution of, or resolve any, dispute that may arise between Better NFT owners.
a. No Decoupling. Except as expressly provided herein, ownership of a Better NFT and the License are not separable in any way. You may not engage in any transaction or activity that purports to decouple the License from Your Better NFT.
b. Termination of License. Upon the transfer of Your Better NFT to a new Owner, as recorded by the Betters Smart Contract: (i) your License hereunder shall immediately and automatically terminate; (ii) you must discontinue any use of Your Underlying Art as a trademark or other source identifier; and (iii) any trademark and corresponding registration obtained in connection with your exercise of the License shall be deemed abandoned unless duly transferred to the new Owner under a separately negotiated written agreement.
c. Published Better Works. If, during the License Term, you create and make available to the public a work using Your Underlying Art (a “Published Better Work”), you may, except as set forth in Section 4(b)(ii), continue to use and exploit that Published Better 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 Better Work after the License Term; and (ii) this privilege does not allow you to use the Underlying Art to create any new works or materials after the License Term. Thus, for example:
i. A digital series featuring Your Underlying 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 the Underlying Art would require a license from the new Owner.
ii. Afer the License Term, you may sell off existing (at the time of transfer) inventories of merchandise featuring Your Underlying 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 Underlying Art would require a license from the new Owner.
5. Owner’s Representations and Warranties. Owner represents and warrants that Owner:
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 Better NFT and Underlying 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 Spacecraft, its licensors, or any right of any third party; and
d. is not, and will not, knowingly execute a transaction involving a Better NFT or Underlying Art with any person who is, (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; or (ii) listed on any U.S. Government list of prohibited or restricted parties.
6. Warranty Disclaimers.
a. EACH BETTER NFT AND YOUR UNDERLYING ART IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, SPACECRAFT 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 BETTER 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 UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM BLOCKCHAIN, WHICH SPACECRAFT DOES NOT CONTROL.
c. SPACECRAFT WILL NOT BE RESPONSIBLE OR LIABLE TO OWNER FOR ANY LOSS IN CONNECTION WITH ANY BETTER NFT OR YOUR UNDERLYING ART AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO OWNER FOR, ANY USE OF OR INABILITY TO USE ANY BETTER NFT OR YOUR UNDERLYING ART, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (I) USER ERROR, SUCH AS FORGOTTEN PASSWORDS, 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 WALLETS; (V) UNAUTHORIZED ACCESS TO ANY BETTER NFT OR YOUR UNDERLYING ART; OR (VI) THE ACTS OR OMISSIONS OF ANY THIRD PARTY.
d. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIESIN CONSUMER CONTRACTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. Assumption of Risk. Owner accepts and acknowledges all risks associated with the following:
a. Better NFTs and Underlying Art may be used in myriad ways. While we strongly encourage transparency, communication, and research prior to acquiring a Better NFT, including to understand what previous and existing uses have been made of the Better NFT and Underlying Art and how those uses may affect value, any purchase of a Better NFT is at the purchaser’s own risk. Spacecraft is not responsible for verifying or providing information on how a Better NFT or its Underlying Art have been exploited. Additional documentation from an Owner may be necessary or prudent.
b. Spacecraft is not responsible for determining or paying any taxes that apply to any Owner’s purchase, sale, or transfer of rights in each Better NFT. As between the parties, Owner is solely responsible for determining what, if any, taxes apply to such transactions.
c. Transactions involving Better NFTs and Your Underlying 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 Spacecraft 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.
8. Indemnity. Owner shall defend, indemnify, and hold Spacecraft, 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 attorney’s fees) that directly or indirectly arise from, or are related to or in connection with, any claim, suit, action, 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 Better NFT or Underlying Art, whether or not such person personally purchased a Better NFT) against the Indemnified Parties, or on account of the investigation, defense, or settlement thereof, arising out of, related to, or in connection with: (i) your access to or use of any NFT marketplace or third-party services or products; (ii) your breach or alleged breach of these Terms; (iii) your exercise or attempted exercise of the License; or (iv) your actual or alleged violation of applicable law. Counsel to be used in the defense of such claim must be approved by Spacecraft 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.
9. Additional Terms and Conditions Incorporated by Reference. Spacecraft’s general terms and conditions are located at: https://hellobetter.world/terms-of-service/ (the “General T&C”). All terms, provisions and agreements set forth in the General T&C are hereby incorporated by reference, with the same force and effect though fully set forth herein. To the extent that the terms of the General T&C are inconsistent with these Terms, these Terms shall govern.
10. Amendments. Spacecraft reserves the right to clarify or amend these Terms by publicly publishing a new version of them, including, but not limited to, on hellobetter.world, sub-domain thereof or any successor website.
a. The License applies only to the Better NFT on the blockchain that Spacecraft, 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 Better NFTs, only the non-fungible token recorded on the blockchain designated by Spacecraft will be eligible to receive the benefit of the License. Any license purportedly granted hereunder to the owner of a non-fungible token recorded on a blockchain not designated by Spacecraft 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 10 or 11(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 Better NFT or Underlying 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 Spacecraft by contacting Spacecraft email@example.com. 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 signature.