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This agreement is between Fungies Inc. and all Merchants that will be using our software to sell virtual goods.
NFT Seller Agreement
PARTIES. This Agreement is entered into and executed as a duly signed, binding legal contract, subject to the laws and local jurisdictions of the Principal Place of Business, 2100 Geng Road, Suite 210, Palo Alto, California, 94303, EIN: 92-0927516, FUNGIES INC. hereafter referred to as “Contractor”; AND THE NFT SELLER, hereafter referred to as “Seller”.
WHEREAS, the Contractor is in the business of creating NFT SaaS Marketplace solution for Gaming Artists, Developers, Freelancers and Professionals.
WHEREAS, the Seller is an Artist with game industry background, recently of (current game studio name or leave blank if freelance) __________________________________________, whose artwork and game assets, such as image, GIF, video, music, sound, UI, other related items, will be uploaded in the Contractor’s SaaS solution and be minted as NFTs to be sold on the platform.
The Buyer is a single person or organization which purchases the rights to the NFT-works minted and sold by the Seller.
NOW, THEREFORE, in consideration of the promises and covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
FEE. A Fee shall be paid from the Seller to the Contractor, contingent upon and subject to the terms and conditions set forth in this agreement. The amount of the fee defined below is the entire fee, and the entire amount of consideration defined, exchanged by covenants, and promises defined in this Agreement.
FLAT FEE. The Seller shall pay the Contractor a flat one-time fee of HALF A PERCENT (0.5%) percent of the amount to which the NFT was bought for - in any cryptocurrency or fiat, and which will automatically be deducted from every NFT sale made.
RENUMERATION. The Seller shall receive all proceeds from the sale of his/her NFT’s on Contractor’s NFT marketplace solution minus the flat fee from each transaction. All sales proceeds shall be paid instantly to the wallets owned by the Seller
SERVICES. The list of services and reasonable description, in accordance with industry best practices for service descriptions, is as follows:
- Contractor shall promote NFT collection of Seller on its social media pages within FOURTEEN (14) days of being posted in the Marketplace.
- Sellers shall promote their NFT collections on their social media pages and include the link to Contractor’s NFT marketplace solution within FOURTEEN (14) days of being posted in the Marketplace.
AMENDMENTS. This Agreement may be amended, modified, or altered by an instrument in writing duly executed by all the Parties and any such amendment, modification or alteration thereto shall be considered an integral part of this Agreement.
1. THE PARTIES’ RIGHTS AND OBLIGATIONS
1.1 Seller is obliged to:
a. perform the Agreement with due professional diligence, in accordance with the binding provisions of US law;
b. to keep in confidence and not to use information constituting legally protected secrets, in particular the Contractor’s business secret obtained in connection with the performance of the marketplace;
c. oblige all employees and partners to keep in confidence and not to use personal data to which they will have access in connection with the performance of the marketplace;
d. immediately transfer all copyrights of the NFT (not the artwork) to the Buyer after his/her purchase on the NFT marketplace;
e. promote minted NFT’s and redirect all traffic from Social Media channels and Website to promote NFT’s minted by Seller;
f. cooperate with Contractor in all marketing activities;
1.2. Contractor is obliged to:
a. perform the Agreement with due professional care, in accordance with the binding provisions of US law;
b. give the right technological environment to enable Buying and Selling NFT’s;
c. cooperate with Seller in order to ensure the effective sales of its NFT’s;
d. support in all technical requirements including training and guiding of the Seller.
2. CONFIDENTIALITY AND PERSONAL DATA PROTECTION
2.1 Each Party shall keep secret all information provided to it by the other Party marked by it as confidential during the term of the Agreement and for 1 year after its expiry, withdrawal, termination or otherwise coming to an end.
2.2 The confidentiality obligation does not apply to situations where the necessity to disclose confidential information results from the provisions of applicable law, final or enforceable decisions of competent state or local authorities, final court judgments, as well as situations where the confidential information has become generally known to those usually dealing with that type of information, or easily accessible to such persons.
2.3 Each Party is obliged to protect and process personal data obtained in connection with the conclusion and performance of the Agreement in accordance with applicable provisions on the protection of personal data, in particular Regulation (EU) 2016/679 of the European Parliament and of California Consumer Privacy Act from 2018 by The State of California, USA on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. The detailed scope of the personal data processing and the related rights and obligations of the Parties will be specified in a separate agreement between the Parties.
3.1 Each party is entitled to rescind the Agreement in the event that the other Party is in gross breach of the essential provisions of the Agreement. The declaration of rescission shall be made in writing, otherwise null and void.
3.2 The rescission referred to in clause 8.1 shall be effective ex nunc and shall not affect the Partner's obligation to pay the Remuneration for the NFT’s sold until Contractor receives the declaration of rescission, even if the Remuneration is not yet due and payable.
4. MARKETING CONSENTS
4.1 The Seller authorizes Contractor to use the business name and the logo (trademark) of the Seller as well as references given by the Seller to Contractor and description of works performed under this Agreement for the informational and marketing purposes of Contractor in respect of communication about the cooperation with the Seller and works performed during the cooperation with the Seller. The Seller also authorizes Contractor to use the Partner's business name and logo (trademark) along with all his personal as well as professional artworks for marketing purposes in the scope of communicating about the fact of partnership between both Parties.
4.2 The authorisation referred to in clause 9.1, will include, but will be not limited to, the authorisation to use the business name, the logo (trademark), references and descriptions referred to in clause 10.1, on the Contractor’ website, on the Contractor’ social media, in the Contractor' sales materials, including the materials used by the Contractor during industry events, irrespective of the form of the materials.
4.3 The Contractor is obliged to use the business name and logo (trademark) of the Seller in a way that does not damage the Seller’s reputation and does not adversely affect its image.
The consent referred to in clause 4.1, may be revoked only if the Contrator uses the business name, the logo (trademark), references or descriptions referred to in point 4.1, contrary to the scope of the authorisation.
5.1. Subject to the reservations specified in the Agreement, upon receipt of the entire Remuneration for a given month, the Seller:
a) transfers to the Buyer the proprietary copyrights to the NFT-works created by the Seller, after they are renumerated for by the Buyer, in the following fields of use:
- application, display, transmission and storage regardless of format, system or standard;
- permanent or temporary recording or reproduction in whole or in part, by any means and in any form, regardless of the format, system or standard, including entering into computer memory and permanent or temporary recording or reproduction of such records, including making copies thereof and any using and disposing of these copies;
- placing on the market, lending or renting the original or copies;
- public dissemination, in particular sharing in such a way that everyone can have access to them at a place and time chosen by them, in particular electronic sharing on request;
- dissemination on the Internet and in closed networks;
- resell the NFT;
- the right to be used for marketing or promotion purposes, including advertising, sponsorship, sales promotion, as well as to designate or identify products and services and other activities, including the right to use as trademarks, as well as for educational or training purposes;
- the remuneration received from the NFT sale from the Buyer shall satisfy all Seller’s claims for the transfer of the above-mentioned rights;
- Buyer is the only receiver of such copyrights and that specific NFT will never be sold in any form anywhere else.
6. FINAL PROVISIONS
6.1 Each party is entitled to transfer the rights and obligations under this Agreement to any third parties, after obtaining a prior, written consent of the other Party, otherwise null and void.
6.2 Any liability (either contractual or tort) of Contractor towards the Seller or any third parties, resulting from the Agreement and/or related to its performance (including non-performance) is based on the principle of fault and is limited to the actual damage of the Partner or any third party and up to the value of the civil liability insurance held by the Contractor.
6.3 This Agreement supersedes all previous arrangements between the Parties regarding the subject of the Agreement and constitutes the entire agreement of the Parties in this regard.
6.4 In the event that any provision of this Agreement is found to be invalid or unlawful, the remaining provisions shall remain in force and the Parties shall take action to replace the invalid or illegal provision which would most fully correspond to the original intention of the Parties.
6.5 This Agreement is subject to US law. Any disputes arising from or related to this Agreement will be exclusively resolved by the common court having jurisdiction over the registered office of Fungies Inc.
6.6 If a party fails to perform any of its obligations under this agreement or if dispute arises concerning the meaning of any provision of this Agreement, then the defaulting party or the party not prevailing in such dispute, as the case may be, shall pay the reasonable costs and expenses incurred by the other party in enforcing or establishing its rights hereunder, including court costs and reasonable attorneys’ fees.
6.7 Notices will be effective hereunder when and only when they are reduced to writing and delivered, by next day delivery service, with proof of delivery, or mailed by certified or registered mail, return receipt requested, to the person named below at the address as first stated above. Notices shall be deemed given on the date delivered or date of attempted delivery, if service is refused.
6.8 In the event any provision of this Agreement shall be invalid, illegal or enforceable in any respect, such a provision shall be considered separate and severable from the remaining provisions of this Agreement, and the validity, legality or enforceability of any of the remaining provisions of this Agreement shall not be affected or impaired by such provision in any way.
6.9 Any changes to the Agreement must be made in writing otherwise null and void.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF THE PARTY OR A PARTY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO $10,000.00.
IN WITNESS WHEREOF, the undersigned authorized representatives of Fungies and the Customer have executed this Agreement as of the date set forth opposite each representative’s name below.