ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION OR A TRIAL BY JURY. BELOW, THESE TERMS EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION.
EXPORT CONTROLS NOTICE: BY ACCESSING, USING, OR HOLDING ANY CP NFTS, AS DEFINED BELOW, YOU REPRESENT THAT YOU ARE NOT A “SANCTIONED PERSON,” AS DEFINED BELOW.
These terms (“Terms”) are a legally binding agreement by and between CP Hyperdrive LLC (“CPHL,” “we” or “us”) and any owner of a CP NFT (defined below) (“you” or “Owner”) governing the parties’ rights and obligations with respect to the matters identified herein. By owning, holding, buying, selling, or attempting to acquire any CP NFT, you agree to abide by these Terms. By agreeing to these Terms, you also agree to the terms of service and privacy policy of Seneca and Marcus, LLC. In the event of a conflict between either of those documents and these Terms, these Terms shall prevail.
Please carefully review these Terms. If you don’t agree with these Terms, you may not access, use, or purchase any NFTs identified herein or participate in any Utility (as defined below) associated therewith.
For more information on the CP NFTs, please visit www.cockpunch.com (the “Website”).
Background: CP NFTs
COCKPUNCH™ is a collection of digital collectible characters represented by non-fungible tokens (“CP NFTs”) minted by a smart contract deployed to the Ethereum blockchain at address 0xC178994cB9b66307Cd62dB8b411759Dd36D9C2EE (the “Verified Smart Contract”). The Verified Smart Contract associates each CP NFT with a piece of digital art featuring one of the COCKPUNCH characters (“CP Characters”).
The owner of a digital wallet that holds a CP NFT, as recorded by the Verified Smart Contract, holds the exclusive right to hold, sell, transfer, and execute blockchain transactions involving that CP NFT (“Your CP NFT”). Except for any CP NFTs we own, CPHL has no right or ability to seize, freeze, or otherwise modify the ownership of any CP NFT.
CPHL owns all rights, title, and interest in and to the CP Characters, including any and all copyrights, trademarks, and other intellectual property rights therein. However, we grant you the License (defined below) to use the CP Character associated with Your CP NFT (“Your CP Character”), subject to these Terms, for as long as you hold such CP NFT, as set forth below.
CONTENTS
License.
Restrictions and Reservations.
Enforcement.
Transfers.
Owner’s Representations and Warranties.
Warranty Disclaimers.
Limitation of Liability.
Disputes.
Miscellaneous.
License.
(a) Grant. Subject to your acceptance of, and compliance with, these Terms, including the restrictions and reservations set forth below, upon lawfully acquiring a CP NFT, and for so long as you own that CP NFT (both dates as recorded by the Verified Smart Contract) (the “License Term”), CPHL grants to you an exclusive, universe-wide, royalty-free, sublicensable license to reproduce, distribute, prepare Derivative CP Works (as defined below) based upon, publicly display, publicly perform, transmit, and otherwise use and exploit, Your CP Character for any lawful purpose, both commercial and non-commercial, in any and all media, whether existing now or invented later (“License”). For the sake of clarity, and as further detailed below, the License does NOT grant you any rights to use the trademark COCKPUNCH™ or any other trade names or trademarks.
Restrictions and Reservations.
Reserved Rights. CPHL reserves for itself, and does not grant to you, any rights to use any CP Character, including Your CP Character, in or as the basis for: (1) any artwork, media, or content associated with, linked to, accessed using, or sold as an NFT or other digital asset other than the CP NFT; or (2) any audiovisual works that are eight (8) minutes or longer in duration including, without limitation, any motion pictures, animations, short films, Internet or social media videos, broadcasts, live streams, television shows, music videos, commercials, video games, or non-linear works including compilations of such duration.
Integrated CP Character Only. The License extends only to Your CP Character—meaning the complete selection and arrangement of all base layers, features, traits, attributes, and other elements that comprise Your CP Character. Thus, while the License allows you to create and exploit Derivative CP Works (defined below), the License does not grant you rights in any individual element of Your CP Character or the license to exploit any individual element separate and apart from Your CP Character.
Restrictions. You may not use any CP Characters or CP NFTs in any manner that: (1) is gratuitously pornographic or otherwise distasteful, offensive, or objectionable, as determined in CPHL’s sole and absolute discretion; (2) 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; or (3) violates applicable law or these Terms.
All Other Rights Reserved. All rights not expressly granted herein including, without limitation, any storylines, character names, or backstories related to the CP Characters, are reserved by us.
(b) Trademarks.
(i) These Terms do not grant you any rights in or to CPHL’s (or any other) trade names or trademarks (e.g., “COCKPUNCH™,” CP Hyperdrive,” “Seneca and Marcus,” “Tim Ferriss,” or any related names) (collectively, “CPHL TM Rights”), all of which are expressly reserved to CPHL. You hereby agree that any CPHL TM Rights you purport to acquire, together with any associated goodwill, shall automatically, immediately, and at your expense be assigned to CPHL. For the sake of clarity, the CPHL TM Rights do not include Your CP Character, in which you may acquire trademark rights through the exercise of your rights in accordance with, and subject to, these Terms and applicable law.
(ii) Any application to register a trademark in Your CP Character must be submitted during the License Term and must be based solely upon the actual use of the CP Character in commerce and solely for the goods or services in connection with which the CP Character actually has 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 any CP Character on an “intent to use” basis or where you otherwise have not used such CP Character in commerce.
(c) Derivative CP Hyperdrive Works. As between you and CPHL, you own all rights, title, and interest in and to any “derivative work,” as defined by the United States Copyright Act, based upon Your CP Character created during the License Term (“Derivative CP Work”); provided, however, that (i) we retain the copyright in Your CP Character underlying any Derivative CP Work; (ii) your use of any Derivative CP Work during and after the License Term is subject to these Terms; and (iii) your use of any Derivative CP Work after the License Term (i.e., after you sell or transfer Your CP NFT) may require a license from the subsequent (i.e., then-current) owner of the CP NFT.
Enforcement.
Copyright Notice. You may include the following copyright notice with Your CP Character: “COCKPUNCH © 2022 CP Hyperdrive LLC.” (the “CPHL 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 Derivative CP Hyperdrive Work you create under the authority of the License during the License Term, provided that you also include the CP Hyperdrive Copyright Notice.
Copyright Registrations. Any application to obtain a copyright registration in Your CP Character shall identify “CP Hyperdrive LLC” as the copyright owner of the CP Character. Any application to obtain a copyright registration in a Derivative CP Hyperdrive Work may identify you or such other person you designate as the copyright owner and shall identify Your CP Character as a preexisting work underlying the Derivative CP Hyperdrive Work.
Actions. To the extent applicable law authorizes you to bring a claim for infringement based upon the unauthorized use of Your CP Character, you agree that (1) any such claim shall be based solely upon the unauthorized use of Your CP Character, not another CP Character—for example, on the ground that the other CP Character is substantially similar to Your CP Character; and (2) CPHL may, in its sole discretion, join and, with your consent (which shall not be unreasonably withheld), take over control of the prosecution of any such action.
Transfers.
Termination of License. Upon the transfer of Your CP NFT to a new owner, as recorded by the Verified Smart Contract: (1) your License hereunder and any sublicenses you granted during the License Term shall immediately and automatically terminate; (2) you must discontinue any use of Your CP Character as a trademark or other source identifier; and (3) any trademark and corresponding registration obtained in connection with your exercise of the License shall be deemed abandoned unless duly transferred to the new CP NFT owner under a separately negotiated written agreement.
Published CP Hyperdrive Works. If, during the License Term, you create and make available to the public a work using Your CP Character (a “Published CP Work”), you may, except as set forth herein, continue to use and exploit that Published CP Work in accordance with these Terms after the License Term; provided, however, that: (1) you will be responsible for any obligations or liabilities arising from your continued use of the Published CP Work after the License Term; and (2) this privilege does not allow you to use the CP Character to create any new works or materials after the License Term. Thus, for example, after the License Term, you may sell off existing (at the time of transfer) inventories of merchandise featuring Your CP Character that were created and offered for sale during the License Term, but the creation or distribution of any new merchandise or inventory featuring Your CP Character would require a license from the new CP NFT owner.
(d) License Back. You grant to CPHL an irrevocable, perpetual, nonexclusive, 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 CP Character in any and all media, now existing or hereafter invented, for any purpose including, without limitation, to promote CPHL and the CP NFTs and for advertising, merchandising, and trade.
1. Utility. Owners of CP NFTs may be offered different rights, benefits, entitlements, or other utility (collectively, “Utility”), but these Terms do not confer any Utility except as granted by the License. CPHL makes no assurances of any Utility, and any Utility offered to owners by CPHL, if any, shall be in CPHL’s sole and absolute discretion. CPHL reserves the right to deny or revoke Utility to any Owner that CPHL, in its sole and absolute discretion, is acting contrary to the values of CPHL’s community or otherwise in bad faith. To the extent any third party offers any Utility in connection with any CP NFTs or subjects the same to additional terms and conditions (collectively, “Third-Party Terms”), you understand and agree that CPHL shall not be a party to or have any responsibility or liability whatsoever for, arising out of, relating to, or in connection with such Utility or Third-Party Terms.
2. Creator Royalty. Upon Owner’s sale of their CP NFT, Owner agrees to pay CPHL a royalty equal to 6.9% of the purchase price (“Creator Royalty”). Owner’s payment of the Creator Royalty is a condition precedent to the new Owner’s right to receive any Utility in connection with the purchased CP NFT, including the rights granted by the License. Owner shall be deemed to have satisfied this condition if they sell their CP NFT on a third-party exchange or marketplace that honors and collects the Creator Royalty. Sale of a CP NFT on a third-party exchange or marketplace that does not honor and collect the Creator Royalty is strictly prohibited, and the Owner of a CP NFT acquired through a sale that does not comply with these Terms shall not be entitled to receive any Utility, including any of the rights granted by the License, unless and until the Creator Royalty due from such sale is paid to CPHL. In addition to all other rights and remedies afforded by law and equity, CPHL shall be entitled to recover from a selling Owner who violates this provision all costs, including reasonable attorney’s fees, that CPHL expends to enforce its right to collect the Creator Royalty from the selling Owner. For the sake of clarity, the term “sale” includes any transfer to a third party for value or other consideration.
Owner’s Representations and Warranties.
Owner represents and warrants that Owner:
(e) has the legal capacity to enter into these Terms;
(f) will only use and interact with CP NFTs and CP Characters as authorized and in accordance with these Terms and applicable law;
(g) in the exercise of its rights and obligations under these Terms, will comply with all applicable laws and will not violate any right of CPHL, its licensors, or any right of any third party;
(h) has not and will not knowingly execute a transaction involving a CP NFT or CP Character 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.
(i) shall only acquire CP NFTs, if any, for Owner’s personal use and enjoyment, and does not have any expectation of profit or other income or value including, without limitation, from the resale of any CP NFT, arising from, relating to, or in connection therewith.
3. Publicity Rights. Nothing herein shall be construed to authorize you to, and you shall not, at any time, use the name, image, likeness, or quotes of Tim Ferriss in any manner that could suggest a direct or indirect endorsement by CPHL or Tim Ferriss of any product or service including, without limitation, any Derivative CP Work or Published CP Work, or for any promotion, marketing, or advertising whatsoever, including website endorsements, client lists, social media advertisements, search engine terms (either paid or organic), or any implied endorsements.
Warranty Disclaimers.
(j) EACH CP NFT AND CP CHARACTER IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, CPHL 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.
(k) EACH CP 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 CPHL DOES NOT CONTROL.
(l) CPHL WILL NOT BE RESPONSIBLE OR LIABLE TO OWNER FOR ANY LOSS IN CONNECTION WITH ANY CP NFT OR CP CHARACTER AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO OWNER FOR, ANY USE OF OR INABILITY TO USE ANY CP NFT OR CP CHARACTER, 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, PROTOCOL, NODE SERVER ERROR OR FAILURE, OR DATA LOSS OR CORRUPTION; (III) ANY FEATURES, DEVELOPMENT, ERRORS, OR OTHER ISSUES WITH BLOCKCHAIN NETWORKS OR WALLETS; (IV) UNAUTHORIZED ACCESS TO ANY CP NFT OR CP CHARACTER; OR (V) THE ACTS OR OMISSIONS OF ANY THIRD PARTY.
(m) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONSUMER CONTRACTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
4. Assumption of Risk. Owner accepts and acknowledges all risks associated with the following:
(a) The value of digital assets and artwork is subjective. Digital assets, including CP NFTs, and artwork, including CP Characters, have no inherent value. As a result, their market prices can be volatile. By purchasing or otherwise using any CP NFT or CP Character, you agree to assume all risks associated therewith, including the risk that the CP NFT or CP Character loses any or all of its value.
(b) CP NFTs and CP Characters may be used in a variety of ways, subject to these Terms. While we strongly encourage transparency, communication, and research prior to acquiring a CP NFT, including as to how previous or existing exploitations of CP Characters may affect the value of a CP NFT, CPHL is not responsible for verifying or providing information on how a CP NFT or its CP Character have been exploited. Additional research and documentation may be necessary or prudent.
(c) CPHL is not responsible for determining or paying any taxes that apply to any Owner’s purchase, sale, or transfer of rights in any CP NFT or CP Character. As between the parties, Owner is solely responsible for determining what, if any, taxes apply to such transactions.
(d) Transacting on a blockchain, including, without limitation, signing or executing transactions using a digital wallet or cryptocurrency, contains inherent risk. Such risks include but are not limited to: (i) risk of sudden and drastic changes in the price of assets including cryptocurrency and NFTs; (ii) risk of smart contract failure or exploit; (iii) risk of hardware, software, or connectivity failure; (iv) risk of malicious software; (v) risks of unauthorized access to your digital wallet; (vi) risk that you will no longer successfully retain ownership of or access to NFTs; (vii) risk that any data or any artwork becomes unavailable or decoupled from the NFT, including, without limitation, because of an outage, data loss, or pursuant to a valid Digital Millennium Copyright Act takedown procedure; (viii) risk from regulatory inquiries, regulatory actions, legislation, or court rulings; and/or (vi) risks, bugs, malfunctions, cyberattacks, or changes to a blockchain network (e.g., forks) or related technologies that disrupt or result in a total loss of NFTs, their market value, or digital funds.
(e) Transactions involving CP NFTs and CP Characters rely on third-party or decentralized platforms, systems, networks, protocols, or marketplaces. We do not maintain, control, or assume any obligations with respect to any of the foregoing. To the extent that CPHL provides links or access 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 or for the results of Owner’s use thereof.
5. Not an Investment. Owner acknowledges and understands that neither CPHL nor any of its related entities nor anyone working on their behalf, including their respective officers, directors, employees, representatives, agents, affiliates, licensees, successors, and assigns makes any representation regarding the likelihood of appreciation of the CP NFTs or CP Characters associated therewith nor any element thereof, and has no control whatsoever on the value of any NFT, including on any secondary markets, which are completely outside of the control of any of the foregoing parties.
6. Indemnity. Owner shall defend, indemnify, and hold CPHL, 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 are related to or in connection with any claim, suit, action, dispute, demand, proceeding, occurrence, process, or other similar activity, that is initiated, made, brought, or financed by a third party (including any person who accesses or transacts using any CP NFT or CP Character, whether or not such person personally purchased a CP NFT) against the Indemnified Parties, 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 or decentralized services or products, (b) your breach or alleged breach of these Terms, (c) your exercise or attempted exercise of the License, or (d) your actual or alleged violation of applicable law. Counsel to be used in the defense of such claim must be approved by CPHL 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.
Limitation of Liability.
(n) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO INDEMNIFIED PARTY WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, 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 CP NFT OR CP CHARACTER, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CPHL 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 $100. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
(o) UNDER NO CIRCUMSTANCES SHALL ANY INDEMNIFIED PARTY BE REQUIRED TO DELIVER TO YOU ANY VIRTUAL CURRENCY OR NFT AS DAMAGES, MAKE SPECIFIC PERFORMANCE, OR ANY OTHER REMEDY. IF YOU WOULD BASE YOUR CALCULATIONS OF DAMAGES IN ANY WAY ON THE VALUE OF VIRTUAL CURRENCY OR AN NFT, YOU AND WE AGREE THAT THE CALCULATION SHALL BE BASED ON THE LOWEST VALUE OF THE VIRTUAL CURRENCY OR NFT DURING THE PERIOD BETWEEN THE INITIAL INCIDENT RESULTING IN THE ACCRUAL OF THE CLAIM AND THE AWARD OF DAMAGES.
(p) THE RELEASE AND WAIVER OF LIABILITY CONTAINED HEREIN IS INTENDED TO BE AS BROAD AND AS INCLUSIVE AS IS PERMITTED BY APPLICABLE LAW, AND IF ANY PORTION HEREOF IS HELD INVALID, IT IS AGREED THAT THE BALANCE SHALL, NOTWITHSTANDING, CONTINUE IN FULL LEGAL FORCE AND EFFECT.
(q) BY PURCHASING OR OWNING OR ATTEMPTING TO ACQUIRE OR OTHERWISE USE ANY CP NFT OR CP CHARACTER, OWNER ACKNOWLEDGES THAT THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CPHL AND OWNER.
Disputes.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Mandatory Arbitration of Disputes. Any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, or the use of the CP NFT or CP Character (“Dispute”) must be resolved solely by binding, individual arbitration and not in a class, representative, or consolidated action or proceeding. Each party waives the right to a trial in court and/or by a jury. This arbitration provision shall survive any termination of the License or these Terms.
Exceptions. As a limited exception to the above: (i) the parties may seek to resolve a Dispute in small claims court if it qualifies; and (ii) each party retains the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of its intellectual property rights.
Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. Any arbitration hearings will take place in the county (or parish) where one lives, with provision to be made for remote appearances to the maximum extent permitted by the AAA rules, unless the parties both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of these Terms.
Arbitration Costs. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, including rules regarding frivolous or improper claims. The prevailing party will be entitled to an award of their reasonable attorney’s fees and costs.
Injunctive and Declaratory Relief. Except as provided above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or CPHL prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
Arbitration Opt-Out. You can opt out of this arbitration agreement within thirty (30) days of the date you acquired Your CP NFT. To opt out, you must provide written notice to CPHL in person or by registered or certified mail, postage prepaid, or by recognized overnight courier, addressed to CPHL at the address shown below, which notice must include your full name, email address, and a clear statement that you want to opt out of this arbitration agreement (such notice, an “Arbitration Opt-out Notice”). If you do not provide us with an Arbitration Opt-out Notice within the thirty (30) day period noted above, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute.
CP Hyperdrive, LLC
3112 Windsor Rd.
#ARB
Austin, TX
78703
Class Action Waiver. YOU AND CPHL AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if a Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with a party’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
Severability. With the exception of any of the provisions of the Class Action Waiver Section, 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.
Disputes Among Owners. CPHL has no obligation to support the resolution of, or resolve any, dispute that may arise between or involve any CP NFT owners.
7. Amendments. CPHL reserves the right to clarify or amend these Terms by publicly publishing a new version of them, including, but not limited to, on tim.blog, tim.blog/cockpunch, cockpunch.com, or any successor or affiliated website.
8. 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 California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in the Disputes Section, the exclusive jurisdiction for all Disputes (defined above) will be the state and federal courts located in Los Angeles, California, and you and CPHL each waive any objection to jurisdiction and venue in such courts.
Miscellaneous.
(r) Because virtually all public blockchains are licensed under open source licenses, it is possible that the blockchain may fork, merge, or duplicate the original blockchain that initially recorded ownership of Your CP NFT. In such case, any rights granted to you under these Terms will be granted only to the lawful owners of such CP NFT whose ownership is recorded on the mainnet version of the blockchain that is generally recognized and predominantly supported in the blockchain industry as the legitimate successor of the original blockchain (as determined in our sole discretion). Any rights purportedly granted hereunder to the owner of a CP NFT recorded on any other blockchain is void ab initio.
(s) These Terms will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns.
(t) 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 herein or as the parties may agree in writing.
(u) Failure to promptly enforce a provision of these Terms or any rights related to the CP NFT or CP Character will not be construed as a waiver of such provision or rights.
(v) 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.
(w) 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.
(x) 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.
(y) 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.
(z) Neither party will be afforded or denied preference in the construction of these Terms, whether by virtue of being the drafter or otherwise.
(aa) 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.”
(bb) Owner may contact CPHL by filling out this form.