End User License Agreement

This End User License Agreement (this “Agreement”) is a binding agreement between Ascendant Art, LLC, a Delaware company (“Licensor”) and the person or entity associated with the Aspire Avatars account as the purchaser (“Licensee”) of one or more licenses for derivative art generated by artificial intelligence (“Product(s)”) offered through the Aspire Avatars website or mobile device apps.

LICENSOR PROVIDES THE PRODUCT SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE FULLY ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOUR SOLE REMEDY AVAILABLE IS THAT YOU MUST NOT DOWNLOAD THE PRODUCT.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY PRODUCT THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S PRODUCT.

  1. Definitions. For purposes of this Agreement, the following terms have the following meanings:

“Authorized Users” means the following individual persons or persons authorized on behalf of a purchasing entity to use the software and Product pursuant to the license granted under this Agreement with registered up to date account information

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Licensee” has the meaning set forth in the preamble.

“License Fees” means the license fees, including all taxes thereon, paid by Licensee for the license granted under this Agreement.

“Licensor” has the meaning set forth in the preamble.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Product” means the AI Generative Art for which Licensee is purchasing a license.

“Term” has the meaning set forth in Section 8.

“Third Party” means any Person other than Licensee or Licensor.

  1. License Grant and Scope. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a revocable, non-exclusive, worldwide, perpetual, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Product, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to: download, copy, use, modify, adapt, translate, distribute, publicly display, transmit, broadcast, and create derivative works from the Product in works Licensee may Create (“Works”), which is limited to visual displays of the Product, by way of example, casus omissus pro omisso habendus est, films, videos, multimedia projects, computer/mobile/console games, models, images, visual publications, broadcasts, visual documents, and visual presentations. All copies of the Product made by the Licensee:

    1. will be the exclusive property of the Licensor;
    2. will be subject to the terms and conditions of this Agreement; and
    3. must include all trademark, copyright, and other Intellectual Property Rights notices contained in the original Product.
  2. Use Restrictions. Licensee nor its Authorized users shall not directly or indirectly:

    1. Use the Product to train Artificial Intelligence networks or Machine Learning networks or algorithms;
    2. Publish, sell, license, offer or make available for sale or licensing, or otherwise distribute the Product except as part of a Work permitted under Section 2 or through a form of sharing that is authorized in this Agreement;
    3. Publish, distribute or make available the Product through any online clearinghouse platform;
    4. Make any copy of the Product except for within the scope of this Agreement and for archival or backup purposes;
    5. Circumvent or disable any access control technology, security device, procedure, protocol, or technological protection mechanism that may be included or established in or as part of the Product;
    6. Hack, reverse engineer, decompile, disassemble, modify or create derivative works of the Product or any part of the Product except as part of a Work permitted under Section 2;
    7. Publish, sell distribute or otherwise make the Product available to others to use, download or copy except as part of a Work permitted under Section 2;
    8. Transfer or sub-license the Product or any rights under this Agreement to any Third Party, except as permitted under Section 9(j), whether voluntarily or by operation of law;
    9. Use the Product for any purpose that may be defamatory, threatening, abusive, harmful or invasive of anyone’s privacy, or that may otherwise violate any law or give rise to civil or other liability;
    10. Remove or modify any proprietary notice, symbol or label in or on the Product, including any internal metadata; and
    11. Directly or indirectly assist, facilitate or encourage any Third Party to carry on any activity prohibited by this Agreement.
  1. Intellectual Property Rights. Licensee acknowledges and agrees that the Product is provided under a limited license, and not transferred or sold, to Licensee. Licensee does not acquire any ownership interest in the Product under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the Product and all Intellectual Property Rights arising out of or relating to the Product, except as expressly granted to the Licensee in this Agreement. Licensee shall make commercially reasonable efforts to safeguard the Product (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Product and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
  2. 5. Disclaimer of Warranty. ALL PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT ANY PRODUCT IS COMPLETE OR RELIABLE, ANY PRODUCT WILL MEET LICENSEE REQUIREMENTS OR EXPECTATIONS, OR ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED.
  3. Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and any party more than 50% owned by Licensor (“Affiliate”), and each of Licensor’s and its Affiliates’ respective officers, directors, employees, and agents against all losses, damages, liabilities, costs including reasonable attorneys’ fees (“Losses”) resulting from any third-party claim, suit, action, or other proceeding (“Third-Party Claim”) arising out of Licensee’s breach of any representation, warranty, covenant, or obligation under this Agreement or alleging that the use of the Product licensed under this Agreement infringes or misappropriates any Third Party’s intellectual property rights.
  4. Limitation of Liability.

    1. WAIVER OF DAMAGES. EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. MAXIMUM LIABILITY. IF, DESPITE THE LIMITATIONS SET FORTH ABOVE, ANY ASCENDART ART PARTY IS FOUND LIABLE TO LICENSEE IN RESPECT OF ANY SITE INTERACTION OR PERFORMANCE UNDER THIS AGREEMENT, THE ENTIRE CUMULATIVE LIABILITY OF SAID ASCENDANT ART PARTIES, AND LICENSEE’S EXCLUSIVE AND CUMULATIVE REMEDY FOR ANY DAMAGES (REGARDLESS OF THE CAUSE OR FORM OR ACTION), WILL BE LIMITED TO ONE HUNDRED US DOLLARS ($100.00).
  1. Term and Termination.

    1. Term. This Agreement is effective from the date of downloading the Product from Licensor’s Site, and/or Licensee clicking “I Agree” to the terms and conditions of the Agreement until terminated by either Party.
    2. Termination without Cause. Licensor may terminate this Agreement at any time without cause, and without incurring any additional obligation, liability, or penalty, by providing at least thirty (30) days written notice to Licensee’s email address registered at the date of termination with Licensor or their last registered email address.
    3. Effect of Termination. The Parties’ rights and obligations set forth in Section 3 (Use Restrictions), Section 4 (Intellectual Property Rights),  Section 5 (Disclaimer), Section 6 (Indemnification), Section 7 (Limitation of Liability), and Section 9 (Miscellaneous), and any right, obligation, or required performance of the Parties under this Agreement that, by its express terms or nature and context is intended to survive expiration or termination of this Agreement, will survive any such expiration or termination.
  1. Miscellaneous.

    1. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    2. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein to Sections and Schedules refer to the Sections of and Schedules attached to this Agreement;
    3. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
    4. Waiver. No waiver, delay, or failure to act by Licensor regarding any particular default or omission will prejudice or impair any of Licensee’s rights or remedies regarding that or any subsequent default or omission that are not expressly waived in writing.
    5. Governing Law and Jurisdiction. This Agreement and any claim, controversy, dispute, or cause of action (whether in contract, tort, or otherwise) based upon, arising out of, or relating to this agreement and the transactions contemplated hereby shall be governed by, and construed in accordance with, the laws of the United States and the State of Colorado, without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction).
    6. Arbitration. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under JAMS Expedited Procedures in its Comprehensive Arbitration Rules and Procedures (“JAMS”) or of the International Center for Dispute Resolution (“ICDR”) in effect on the date of the commencement of the arbitration (the applicable rules to be at Licensee’s discretion) to be held in Denver, Colorado. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Licensor shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the opinion of Licensor, such action is necessary or desirable as a matter of protection of its legal rights.
    7. Entire Agreement. This Agreement, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
    8. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
    9. Assignment. This Agreement may not be assigned by Licensee without the prior written consent of Licensor and is binding upon Licensee’s heirs, executors and legal representatives. Licensor may freely assign its rights and obligations under Agreement without Licensor’s consent.

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