NEXTNAME NFT AGREEMENT
this is a legally binding agreement between the Player and the Company as set forth below. The purpose of this Agreement is to provide for the sale of NFT Products by the Company using the Player’s Identification on the Company’s Platform and other NFT Marketplaces throughout the world. This Agreement is made subject to the following “Key Business Terms” and further subject to the “Standard Terms and Conditions” that are attached hereto. All capitalized terms used throughout this Agreement have the meaning set forth in the “Definitions” section of the Standard Terms and Conditions.
KEY BUSINESS TERMS
|Effective Date||The Date that the Player is accepted by the Company to participate in the Contest.|
|Player||The Player who submits an application through our on-line portal and agrees to be bound by the terms and conditions of this Agreement.|
|Address||The physical address provided by the Player from time to time.|
|The electronic email address provided by the Player from time to time.|
|Phone||The telephone number provided by the Player from time to time.|
|Company||ILL-NFT, Inc., doing business as NextName, an Illinois corporation having its principal place of business at 191 N. Wacker Drive, Suite 2300, Chicago, Illinois 60606.|
|Contest||The 2023 NextName in Men’s Division I College Basketball tournament.|
|School||The school identified by the Player in his on-line application, a Division I athletic program in the National Collegiate Athletic Association (“NCAA“).|
|Sport||Men’s Division I College Basketball|
|The Pot||The Pot will be equal to ten percent (10%) of the Net Sales of all NFT Products sold by all Players who participate in the Contest, plus seventy percent (70%) of all Tournament Tokens sold.|
|Tournament Tokens||The specially designated NFT Products developed and sold by the Company for the Contest.|
|Contest Winners||In the event that the Player is in the top five players who sell the most NFT Products sold by dollar volume during the Contest Period, he will receive 50% of the Pot if he is in first place, 20% of the Pot if he is in second place, 15% of the Pot if he is in third place, 10% of the Pot if he is in fourth place, and 5% of the Pot if he is in fifth place.|
|Player Only NFT Royalty||Player will receive a royalty equal to seventy percent (70%) of the Net Sales received by the Company from the sale or subsequent transfer of all NFT Products sold by the Company bearing the Player’s Identification and no School Identification, less all Production Costs and Prepaid Royalties paid to Player prior to the sale of NFT Products during the Term of this Agreement.|
|Player & School NFT Royalty||Player will receive a royalty equal to sixty percent (60%) of the Net Sales received by the Company from the sale or subsequent transfer of all NFT Products sold by the Company bearing the Player’s Identification and School Identification, less all Production Costs and Prepaid Royalties paid to Player prior to such sale of NFT Products during the Term of this Agreement.|
|Contest Period||February 15, 2023-April 15, 2023|
|Term||Commences on the Effective Date and terminates as provided in Section 11.|
The Player and Company agree to the forgoing Key Business Terms, subject to the Standard Terms and Conditions that are attached hereto, by signing this Agreement below:
STANDARD TERMS AND CONDITIONS
- DEFINITIONS. Capitalized terms have the meanings set forth or referred to in this Section 1 or as defined throughout this Agreement.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.
“Agreement” means this written agreement between the parties including the Key Business Terms and these Standard Terms and Conditions.
“Blockchain” means a list of linked unalterable records or “blocks”, each containing a cryptographic hash of the previous block, a timestamp, and transaction data.
“CLC” means the Collegiate Licensing Company, LLC.
“Company” has the meaning set forth in the Key Business Terms.
“Confidential Information” has the meaning set forth in Section 12.
“Control” (and with correlative meanings, the terms “Controlled by” and “under common Control with”) means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.
“Effective Date” means the date set forth in the Key Business Terms.
“Gas” means the fee or pricing value, if applicable, the amount of which varies from time to time depending on the volume of network traffic, that is paid directly to the miners of as compensation for the computing power provided to process and validate transaction, and is required to be paid in order to successfully conduct a transaction or execute a Smart Contract (as defined herein) on the Blockchain.
“Governmental Authority” means any federal, provincial, territorial, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.
“Indemnified Party” has the meaning set forth in Section 13.2.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, or other requirement or rule of law of any Governmental Authority.
“Minted” means the computational process of registering or “tokenizing” an NFT on a Blockchain enabling its provenance to become public and verifiable.
“Net Sales” with respect to NFT Products, means, for each consummated sale, distribution, download, assignment, or other transfer of an NFT Product, the total invoice/sale price, in each case including the Royalty (as defined herein), whether included in the price, as a separate invoice line item, or otherwise, less all documented:
- Transfer Fees. All applicable transaction costs or transfer fees, including Gas and other Blockchain fees, actually charged/assessed by the applicable NFT Marketplace or Blockchain on each such consummated sale, distribution, download, assignment, transfer, or other commercialization of an NFT Product;
- Returns. Credits for returns actually made as supported by issued credit memoranda or related documentation;
- Third-Party Royalties. All royalties and/or other fees paid by the Company to Third-Parties for the use of the applicable Third-Party Intellectual Property Rights incorporated or embodied in, or combined with, the applicable NFT Product(s); and
- Taxes. Sales and use taxes, value added taxes, goods and services taxes, and other similar taxes (excluding Company’s income and/or capital gains taxes) imposed with respect to the commercialization of NFT Products; provided, that, there shall be no other deductions allowed including, without limitation, deductions for direct or indirect costs (e.g., tariffs) incurred in the manufacturing, distributing, selling, importing, advertising (including cooperative and other advertising and promotional allowances), or other commercialization of the NFT Products, nor shall any deductions be allowed for non-collected or uncollectible accounts, commissions, cash or early payment discounts, closeout sales, distress sales, sales to employees, or any other costs.
“NFT Marketplace” means any website, mobile application, or other online site or location that facilitates purchases, sales, transfers, assignments, distributions, downloads, or other change of ownership transactions between Persons with respect to NFTs. Examples of NFT Marketplaces include, but are not limited to, the Company’s Platform, OpenSea, Rarible, SuperRare, Foundation, AtomicMarket, and Myth Market.
“NFT Products” means non-fungible tokens consisting of digital images, videos, artwork and other creative media that are Minted on a Blockchain pursuant to a Smart Contract.
“Participating Players” means the total number of players that are participating in the Contest from the School who have joined the Company’s Platform during the Contest Period.
“Party” means a party to this Agreement
“Parties” means the Player and the Company.
“Person” means any individual, partnership, corporation, trust, limited liability company, unincorporated organization, association, Governmental Authority, or any other entity.
“Prepaid Royalties” means the amounts paid to the Player, if any, in connection with the execution of this Agreement.
“Production Costs” means all costs paid by the Company to third parties related to the creation of an NFT Product which may include design fees, fees paid to independent contractors, fees paid for the right to use images, voices, videos, and other digital content, School licensing fees for the use of School Identification, third party licensing fees, and other costs that are directly related to the creation of an NFT Product.
“Player” has the meaning set forth in the Key Business Terms to this Agreement.
“Player Losses” has the meaning set forth in Section 13.1.
“Player’s Identification” means Player’s name, nickname, voice, video or film portrayals, photograph, likeness, image, and any other means by which Player may be recognized.
“Platform” means the Company’s website platform at https://nextname.io where the Company markets and sells NFT Products, or any future platform or marketplace used by the Company.
“Player Only NFT” means an NFT Product bearing Player Identification and no School Identification.
“Player & School NFT” means an NFT Product bearing Play Identification and School Identification.
“Smart Contract” means a “digital” program stored on a Blockchain that, through a network of computers, automatically executes programmatic functions when predetermined conditions are met.
“Term” has the meaning set forth in Section 11.1.
“Trademarks” means all rights in and to US and foreign trademarks, trade dress, brand names, logos, trade dress, corporate names and domain names, business names, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
“Royalty” means the percentage fees that the Player is entitled to pursuant to this Agreement as further set forth on Exhibit A.
“School Identification” means the trademarks, copyrights, or other intellectual property of the School that are licensed by the Company from the School and CLC pursuant to separate written agreements.
“School Rules” means any policy, rule, decree or decision made by the School with respect to the use of Player Identification.
- NFT PRODUCTS. This Agreement shall apply to the sale of all NFT Products bearing the Player’s Identification both during the Contest Period and thereafter until this Agreement is terminated as provided herein.
- PLAYER’S PROMOTIONAL EFFORTS. To the extent allowed by applicable law, Player agrees to generally endorse and promote the sale of NFT Products with the Company to maximize the revenue associated with the sale of NFT Products. Such general endorsements may include, liking, commenting, and endorsing the Company on social media websites and applications such as Facebook, Twitter, Instagram, and other applications where the Company is promoting the sale of NFT Products, and sharing their NFT Products on their social media accounts. Player recognizes the importance of promoting the sale of NFT Products because it will increase the revenue sharing opportunities and money that is paid to Player.
- GRANT OF IDENTIFICATION RIGHTS FOR NFT PRODUCTS.
- Subject to the terms and conditions hereinafter set forth, Player hereby grants to Company and its Affiliates, during the Term and any extension thereof, the non-exclusive right and license to use the Player’s Identification solely in connection with the advertisement, promotion, distribution and sale of NFT Products on any NFT Marketplace.
- Player further grants the Company and any subsequent purchaser or holder of any NFT Product sold by the Company the right in perpetuity to license, sell, trade, use, display, assign, or otherwise transfer any NFT Product created by the Company during the Term of this Agreement to any Person. Player recognizes that once an NFT Product is created it will become an asset that can be purchased and sold in on-line marketplaces with or without the participation of the Company or Player.
- SALE OF NFT PRODUCTS. To facilitate and enhance Company’s use of the Player’s Identification, to the extent allowed by applicable law, Player shall:
- Provide the following services in connection with the creation of NFT Products:
- Taking part in production days including, but not limited to photoshoots or video recording sessions to create content that can be used for NFT Products at agreed upon times and locations;
- Capturing and providing images, videos and other digital content that can be used to create NFT Products; or
- Use his commercially reasonable efforts to promote the sale and use of NFT Products and promote the relationship between Player and Company.
- Notwithstanding the foregoing, any Player who is an international student and not a United States citizen shall not be required to provide any services in the United States at any time while located in the United States, unless the terms and conditions of the Player’s U.S. Visa permit the same.
- Provide the following services in connection with the creation of NFT Products:
- PLAYER’S RETENTION RIGHTS. Subject to the provisions of Section 3 above, Player shall retain all rights in and to the Player Identification. During the Term or any renewal thereof, Player shall have the right to use or permit or license others to use the Player Identification and give his endorsement to any product or service. Player acknowledges that it is his intention to associate the Player Identification only with products and services that are highly rated by consumers.
- APPROVAL OF NFT PRODUCTS. Prior to the release of any NFT Products, the Company shall submit to Player all proposed NFT Products that will include Player’s Identification. Such NFT Products shall not be publicly released by Company without the prior approval of Player. Player shall not unreasonably withhold or delay approval of said NFT Products and, in the absence of disapproval within forty-eight (48) hours of delivery thereof by Company, such NFT Products shall be deemed approved by Player.
- TOURNAMENT TOKENS. The Company intends to Mint and sell a Tournament Token to promote the tournament and to provide proceeds to the winners as provided above.
- OWNERSHIP & ADVERTISING RIGHTS.
- During the Term, Company shall have the right to Player’s Identification for advertising its NFT Products in all mediums, including but not limited to billboards, radio broadcasts, newspapers, online and digital advertising, and television commercials.
- The Company shall have exclusive ownership of all NFT Products until such time as an NFT Product is sold or transferred to a purchaser.
- The Company shall be responsible for securing the ownership or licensing rights of all intellectual property that is incorporated into NFT Products, other than the content provided by Player. The Company shall have exclusive ownership of any images, voice recordings, videos, or other digital content that the Company creates that incorporate a Player’s Identification and shall have an irrevocable right and license to use any images, voice, recordings, videos, or other digital content provided by Player to the Company during the Term of this Agreement.
- The Company may include its name, logos, or other intellectual property into an NFT Product.
- STUDENT ATHLETE’S COMPENSATION. The Company agrees to pay the consideration set forth in the Key Business Terms for the rights granted pursuant to this Agreement. The Company shall pay all amounts due to the Player on a monthly basis or before the 30th day of the month following the month of the sale of NFT Products, less any amounts disputed by the Company in good faith. All payments hereunder shall be in US dollars (USD) and made by check or electronic transfer. All royalties will be based upon the amounts actually received by the Company. The Company will only receive a percentage of the Net Sales associated with any subsequent transfer or sale of an NFT Product and the royalty paid to the Player will be based upon the amount actually received by the Company from such sale and shall only be paid for the Term of this Agreement.
- TERM, TERMINATION, AND SURVIVAL.
- The term of this Agreement will commence on the Effective Date and continue until either party terminates this Agreement (“Term“) unless sooner terminated in accordance with the provisions of Section 2. In no event will the Term extend beyond the expiration of Player’s NCAA eligibility, Player’s departure from School or any other termination of Player athletic participation at School.
- Company shall have the right to terminate this Agreement at any time, effective immediately, on written notice to Player or, where applicable, his legal representative, on the occurrence of any of the following:
- Player’s death.
- Commission by Player, during the Term or in the past, of any criminal act or other act involving moral turpitude, drugs, or felonious activities.
- Commission of an act by Player or Player’s involvement in any situation or occurrence, during the Term or in the past, which brings Player into public disrepute, contempt, scandal, or ridicule, or which shocks or offends the community or any group or class thereof, or which reflects unfavorably upon Company or reduces the commercial value of Company’s association with Player, including, but not limited to, being arrested for an alleged violation of any Law.
- Commission of an act by Player that tends to shock, insult, or offend the community or any substantial portion thereof, or to offend public morals and decency to such an extent that the value of the Player’s Identification is, in the reasonable judgment of Company, substantially impaired.
- Actions or statements by Player reasonably deemed by Company to be derogatory toward Company or the NFT Products, or which may tend to injure the success of Company or any of Company’s NFT Products.
- The involvement or association of Player with any event or circumstance that the Company becomes aware of during the Term, caused by (i) one or more of Player’s immediate family members or (ii) others closely associated in the public’s mind with Player (other than Company) that renders the use of the Player Identification or the Player’s Identification detrimental to the marketing of the NFT Products.
- Material breach by Player of any of the terms of this Agreement, which breach is not cured by Player within seven (7) days of notice thereof by Company.
- This Agreement, or any provision, violates any Law or any School Rule, unless the portion of this Agreement that is in violation of the same can be easily removed or stricken from the Agreement without a material change to the substance, purpose and value proposition of the remaining portions of this Agreement.
- Upon ten (10) days advance written notice by the Company.
- Player shall have the right to terminate this Agreement at any time, effective immediately, on written notice to Company, on the occurrence of any of the following:
- Company’s failure to pay any undisputed amount when due to Player, where such failure continues for seven (7) days after Company receives electronic notice from Player of nonpayment.
- Material breach by Company of any of the terms of this Agreement, which breach is not cured by Company within seven (7) days after Company receives written notice from Player of the breach.
- Company becoming insolvent, filing a petition for bankruptcy or commencing, or having commenced against it, proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
- This Agreement, or any provision, violates any Law or any School Rule, unless the portion of this Agreement that is in violation of the same can be removed or stricken from the Agreement without a material change to the substance, purpose and value proposition of the remaining portions of this Agreement.
- Upon the termination of this Agreement, for any cause whatsoever, Company will immediately and completely cease using the Player’s Identification and shall not thereafter use or refer to the Player’s Identification for advertising and promotional purposes whatsoever.
- The rights and obligations of the Parties set forth in this Section 11 and Section 6, Section 12, Section 14, Section 16, Section 20, Section 22, Section 23, Section 24, and Section 25, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
- INDEPENDENT CONTRACTOR.
- It is understood and acknowledged that Player is providing the Player’s Identification and granting additional rights to Company under this Agreement in the capacity of an independent contractor and not as an employee or agent of Company.
- Player has no authority to commit, act for, or on behalf of Company, or to bind Company to any obligations or liability.
- Player shall not be eligible for and shall not receive any employee benefits from Company and shall be solely responsible for the payment of all taxes, FICA, federal and state unemployment insurance contributions, state disability premiums, and all similar taxes and fees relating to the fees earned by Player hereunder.
- Player agrees to provide a properly completed IRS From W-9 for tax reporting purposes in connection with the execution of this agreement.
- CONFIDENTIALITY. All non-public, confidential or proprietary information of Company (“Confidential Information“), including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or other information intended by the Company to be confidential, disclosed by Company to Player, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for Player’s use in performing this Agreement and may not be disclosed or copied unless authorized by Company in writing. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Player’s breach of this Agreement; (b) is obtained by Player on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; or (c) Player establishes by documentary evidence, was in Player’s possession prior to Company’s disclosure hereunder. Upon Company’s request, Player shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this Section
- Company shall defend, indemnify and hold Player harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees awarded against Player in a final non-appealable judgment (collectively, “Player Losses“) resulting from any claim of a third party arising out of, or occurring in connection with, any claim or action resulting from use of the NFT Products, except if the Player Losses resulted from or were caused, in whole or in part and directly or indirectly, by Player’s negligence, willful misconduct, or breach of this Agreement.
- Player shall defend, indemnify and hold Company and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party“) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees awarded against Indemnified Party in a final non-appealable judgment, resulting from any claim of a third party arising out of or occurring in connection with Player’s negligence, willful misconduct, or breach of this Agreement. Player shall not enter into any settlement without Company’s or, where pertinent, Indemnified Party’s prior written consent.
- ENTIRE AGREEMENT. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
- NOTICES. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth above (or to such other electronic address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
- SEVERABILITY. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- AMENDMENTS. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, and signed by each Party or an authorized representative of each Party.
- WAIVER. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- CUMULATIVE REMEDIES. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
- ASSIGNMENT. Player acknowledges that this is a personal services agreement and that he shall have no right to assign, transfer, delegate or subcontract any of his rights or obligations under this Agreement without the prior written consent of Company. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation or subcontract shall relieve Player of any of his obligations hereunder. Company may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Player’s prior written consent.
- SUCCESSORS AND ASSIGNS. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
- NO THIRD-PARTY BENEFICIARIES. Subject to the next paragraph, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. The Parties hereby designate Company’s officers, directors, employees, agents, affiliates, successors, and permitted assigns as third-party beneficiaries of Section 2, having the right to enforce said Section.
- CHOICE OF LAW. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Illinois, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of
- CHOICE OF FORUM. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the state and federal courts located in Chicago, Illinois, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in Chicago, Illinois. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
- Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including exhibits, schedules, attachments and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
- COUNTERPARTS. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 16, a signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.