Opt-in Agreement for The Ben Mezrich NFT Project (the “Agreement”)
(Please note that this Agreement is representative, is not yet final, and may be subject to change in our sole and absolute discretion before the drop of any Screenplay Token)
[*note: this document is subject to change between now and initial mint of the genesis drop of this project; anyone minting in the genesis and other drops for this project will be asked to agree with their wallet to this document before being able to mint].
THESE TERMS CONTAIN AN ARBITRATION AGREEMENT, A WAIVER OF CLASS-ACTION RIGHTS, AND LIABILITY LIMITATIONS.
You (“you” or “your”) are the owner of an NFT which provides you with access to a cryptocurrency gated portal owned and operated by: (i) Forum3 LLC and (ii) Ben Mezrich, together doing business as the Mezrich NFT Project (the “Mezrich NFT Project” or the “Project”). This Agreement governs your participation in the screenplay token reward (the “Screenplay Token”) which shall allow you the opportunity to share in the potential proceeds, if any, derived from a screenplay to be written by Ben Mezrich (or the “Screenplay”), as further described below.
Description of Screenplay Token Reward
Eligible holders of a Screenplay Token (“Screenplay Token Holders”) shall be entitled to electronically sign this Agreement with their cryptocurrency wallet, and thereby “opt in” to receiving a portion of revenues received from the Screenplay, if any. Ownership of a Screenplay Token does NOT by itself entitle Screenplay Token Holders to receive such reward, unless such Screenplay Token Holders have: (i) satisfied all eligibility requirements (as defined below), (ii) have properly opted into this Agreement with their cryptocurrency wallet, and (iii) have maintained ownership of the Screenplay Token through any applicable Award Snapshot Date or Award Payment Date, as each term is defined below.
Timing of the Reward
Within six (6) months of the Level 3 NFT Drop (the “Vegas Drop”), Ben Mezrich intends to complete a screenplay around the NFT/Web3 space (the “Screenplay”). Thereafter, we shall make our best efforts to market the Screenplay to major motion picture studios with the intent that the Screenplay be made into a major motion picture.If and when the Screenplay has been sold and the sales proceeds have been received by Ben Mezrich, within a reasonable time thereafter (at a time and date selected in our sole and absolute discretion) we shall take a snapshot of Screenplay Token Holders (the “Award Snapshot Date”). Within a reasonable time thereafter (at a time and date selected in our sole and absolute discretion), we shall distribute the Screenplay Token Reward (denominated in Ethereum or other ERC20 token selected in our sole and absolute discretion) to the Screenplay Token Holders (the “Award Payment Date”). We reserve the right (in our sole and absolute discretion) to alter the method and manner of distribution of the Screenplay Token Reward.
Calculation of the Reward
Screenplay Token Holders as of the Award Snapshot Date shall, on the Award Payment Date, receive an amount equal to fifty percent (50%) of the Net Profits (as defined below), from the sale of Screenplay to a motion picture studio, divided by the total number of Screenplay Tokens (the “Screenplay Token Reward”) for each Screenplay Token held. Such calculation shall account for the initial sales price of the Screenplay received, and shall not account for any other ancillary revenues or future royalty streams derived thereof.For the avoidance of doubt, and for illustration purposes only, if the Net Profits were $1,000,000, and there are 750 Screenplay Tokens, the share of Net Profits to which each Screenplay Token Holder is entitled would be calculated as follows:$1,000,000 * 50% = $500,000$500,000 / 750 = $666.67For purposes of this Agreement, the term “Net Profits” shall be defined as all sums actually collected by the Mezrich NFT Project in connection with the initial sale of the Screenplay following: (a) recoupment of all production costs, and (b) recoupment of all expenses. The Mezrich NFT Project shall in its sole and absolute discretion provide reasonable disclosures and accounting of its Net Profits calculations, and no other accounting shall be required. When an accounting is provided, it shall be rendered with a statement of any sums due and any sums due shall be rendered within ninety (90) days of the applicable accounting period. All statements furnished by the Mezrich NFT Project hereunder shall be deemed correct, conclusive, and incontestable twelve (12) months after the date issued. Each Screenplay Token Holder shall be entitled to its portion of Net Profits (as applicable) directly generated from the initial sale of the Screenplay itself (if any), but are not eligible to receive rights from any further monetization of the Screenplay including, but not limited to, any sequel to or derivatives of the Screenplay, any royalties or residuals from the Screenplay or production of the Screenplay, or any subsequent or related motion picture, television, digital or web series, book, audiobook, radio or podcast, serial rights, trademarks, clothes, toys or other merchandise, games, performance rights, or other subsidiary rights that may arise out of the Screenplay.The Screenplay is defined as the as yet untitled final manuscript written by Ben Mezrich. For purposes of this Agreement, the definition of Screenplay specifically excludes any and all copyright registrations, all renewals and extensions of such copyright, and any translations, novelizations, dramatizations, sequels, remakes and other adaptations or versions of the Screenplay.Only the cryptocurrency wallet holding the Screenplay Token at the Snapshot Date shall be entitled to the payments described hereunder, even if the Screenplay Token has been traded to another cryptocurrency wallet. All payments to a holder of a Screenplay Token will constitute full and complete payment and the Mezrich NFT Project will have no liability by reason of any erroneous payment or failure to comply with this authorization. You, as the Screenplay Token Holder, irrevocably release from, and will indemnify and hold the Mezrich NFT Project harmless against, any claims asserted against the Mezrich NFT Project and any damages, losses or expenses the Mezrich NFT Project incurs by reason of any such payment or otherwise in connection herewith.
In order to be eligible to receive any payment, you affirm that you are 18 years of age or older, and that you unconditionally accept the terms and provisions of, and are bound by, this Agreement. You affirm that if you hold a Screenplay Token on behalf of an organization or company, you have the legal authority to bind any such organization or company to this Agreement. You will not be eligible to receive the reward if you: (i) do not agree to this Agreement, in whole or in part; (ii) are not of the age of majority in your jurisdiction of residence; or (iii) are prohibited from receiving the reward, participating in the Mezrich NFT Project, or receiving any of benefits provided herein by applicable law.You are responsible for maintaining your cryptocurrency wallet, your private keys, and are fully responsible for any and all activities that occur with your cryptocurrency wallet. The Mezrich NFT Project is not responsible or liable for any loss or damage arising from your loss of control of your cryptocurrency wallet or any token associated with the Mezrich NFT Project, including, but not limited to, the Screenplay Token. Your loss of control of the Screenplay Token may result in you losing eligibility for the reward, or losing access to the reward entirely and the Mezrich NFT Project shall have no duty to replace such Screenplay Token.
No Investment Purpose
You agree that you are not participating in the Project for any type of investment purpose(s). Nothing associated with the Project is intended to be an investment offering or offering of securities in any jurisdiction nor does it constitute an offer to purchase shares, securities, or any other financial products of any kind. Due to the artistic nature of the project, the Project has not been registered with or approved by any federal, state or local regulator in any jurisdiction including, but not limited to, the Securities and Exchange Commission. It remains your sole responsibility to ensure that your involvement with the Project, including the purchase of any cryptocurrency, tokens, NFTs and/or any associated art is in compliance with laws and regulations in any jurisdiction which governs the Project.
You acknowledge that:· Neither the Mezrich NFT Project nor any of the associated NFTs, including specifically the Screenplay Token, are subject to any federal, state or local securities laws. The Mezrich NFT Project is relying upon your representations contained herein for the purpose of issuing the Screenplay Token and making any corresponding payments as described herein.· You have such knowledge, skill and experience in cryptocurrency matters and that you are fully capable of evaluating the merits and risks of participation in the Project.· You recognize that Ben Mezrich and the Mezrich NFT Project are not making any assurances that the Screenplay will be completed or, if completed, that it will result in a profit to the Mezrich NFT Project and/or you, and if a profit is generated, that any of that profit will be shared with any participants in the Project, including you. · Ben Mezrich may die, become disabled or incapacitated, or in his sole and absolute discretion, abandon the Screenplay altogether and you will have no recourse against him, the Project or anyone involved with the Project. Participation in the Project involves a substantial degree of risk and is entirely speculative, subject to the risk of a partial or complete loss of your funds. The Screenplay Tokens created by the Project may have no inherent value and may lose some or all of their value.· You have made an independent investigation of the Project and related matters as you deem to be necessary or advisable in connection with your participation in the Project. · You are acquiring Screenplay Tokens for your own account and not with a view to or in connection with a resale, profit, or distribution thereof. · You have no expectation of a profit (or even the return of your funds) in connection with your participation in the Project and your participation is based entirely upon your support of Ben Mezrich and his work.
You agree that Mezrich retains all rights, title and interest in the Screenplay. You shall not acquire any interest, nor make any claim to the Screenplay by virtue of your participation in the Mezrich NFT Project. Your shall have no right, title, or interest of any kind or nature whatsoever in the Screenplay or receive any compensation whatsoever for your participation in the Mezrich NFT Project. To the extent you make any suggestions or feedback which are incorporated in the Screenplay, you provide a perpetual fully paid license to the Mezrich NFT Project to use those suggestions or feedback, and acknowledge that you shall have no right to further compensation. You hereby agree to indemnify, defend and hold the Mezrich NFT Project and all of its officers, directors, mangers, members, employees, agents, information providers, affiliates, partners, and licensors harmless from and against any and all liability, claims, damages, losses, costs, and expenses, including attorneys' fees, arising from, related to, or in connection with (a) your violation of any provision of this agreement; or (b) arising from, related to, or connected with your violation of the rights of the Mezrich NFT Project or any other person or entity.
Holders of Screenplay Tokens shall have no right to any attribution in connection with the Screenplay, and any credit granted to Screenplay Token Holders (including, but not limited to, location, size, predominance, and font), is in the sole and absolute discretion of the Mezrich NFT Project.
Taxes and Cryptocurrency Risks
You are advised to seek independent legal and tax counsel as to the significant risks which may be involved in receiving cryptocurrency or NFTs, generally. You are solely responsible to determine whether, and to what extent, any taxes apply to any transactions that may result from this Agreement, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate taxing authorities. You assume all risks of loss inherent to cryptocurrencies, including total loss in value or function, security breaches or hacks, and obsolescence. You understand that there has been little regulatory guidance as to the sale of NFTs (including with respect to securities laws, AML/sanctions laws, and tax laws) and nonetheless voluntarily enter into this agreement and assume these associated risks, and are advised to independently consult regulatory or compliance counsel familiar with these risks. You accept the risk of volatility in the value of cryptocurrency until and after any such payments are received by you. You understand that the Project may or may not convert any proceeds from cryptocurrency to ‘fiat’ currency at any time in its sole and absolute discretion without the input of you or any further recourse. You acknowledge and understand that cryptocurrencies and NFTs are uniquely vulnerable to security threats and exploits. The Project makes no representations regarding and explicitly disclaims the security of any NFT or cryptocurrency storage medium, or of any wallet, platform, or intermediary utilized. You shall not seek to hold the Project liable, and you acknowledge that the Project expressly disclaims any liability, for any loss related to a security breach or exploit related to the use of blockchain technologies pursuant to this Agreement.
The Project will not be liable for any failure or delay in performing an obligation under this Agreement that is due to any cause beyond its reasonable control, including but not limited to: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, cyber breakdown of web host, breakdown of internet access or internet service provider, cyber-attacks, failure of blockchain network or platforms, natural catastrophes, governmental acts or omissions, changes in laws or regulations, labor stoppages or strikes, industry or national strikes, fire, explosion, generalized lack of availability of raw materials or energy.
Upon the expiration or other termination of this Agreement, the respective rights and obligations of the parties hereto shall survive such expiration or other termination to the extent necessary to carry out the intentions of the parties under this Agreement.
Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement.The parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement, or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the maximum extent permitted by law.The parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth herein.
Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
Electronic Signature as Original
This Agreement between you and the Project is made in electronic form is as legally binding as if made in physical written form.
Successors and Assigns
This Agreement is personal to you and shall not be assigned by you, in whole or in part, to any third party or parties. Any purported assignment by you shall be null and void, ab initio. The Project may assign this Agreement, in whole or in part, at any time and from time to time, to any parent, subsidiary, successor or assign (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Project. This Agreement shall inure to the benefit of the Project and successors and permitted assigns.
Notices and all other communications to the Project provided for in this Agreement must be in writing and shall be deemed given (i) upon personal delivery or nationally recognized delivery service (i.e., FedEx, UPS, USPS), (ii) upon delivery, if by first class mail return receipt requested, or (iii) upon delivery with confirmation of successful transmission, if by email, at the address indicated below (or such other addresses as specified by the parties by like notice):If to the Project:If to You: [at the email address listed with the project?]
Governing Law: Jurisdiction and Venue
Except to the extent provided for herein, this Agreement and the performance hereof shall be construed and governed in accordance with the laws of the State of New York, without giving effect to any conflicts or choice of law principles (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York. No party to this agreement will challenge the jurisdiction or venue provisions as provided herein. The Parties hereby waive and shall not assert any claim or objection to such exclusive jurisdiction, including based on improper personal jurisdiction or forum non conveniens.
The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between representatives of each party who have authority to settle the controversy. The parties to this Agreement will submit all disputes arising under this Agreement to arbitration in New York, New York before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of the parties, except that such arbitrator shall be an attorney admitted to practice law in New York and conversant with blockchain technologies. Nothing contained herein shall prevent a party from seeking provisional relief to maintain the status quo in aid of arbitration in a court of competent jurisdiction. Nothing contained herein shall prevent a party from filing a state or federal court action for injunctive or other equitable relief in any court having jurisdiction over the subject matter of the action. WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THE NFTS OR THE DISTRIBUTION OF ANY NET PROFITS: (I) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (II) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
LIMITATION OF LIABILITY
THE PROJECT’S LIABILITY HEREUNDER SHALL BE LIMITED TO THE AMOUNT OF THE PROJECT’S SHARE OF NET PROFITS PROCEEDS ACTUALLY RECEIVED BY THE PROJECT UNDER THIS AGREEMENT. IT IS INTENDED THAT THIS LIMITATION APPLY TO ANY AND ALL LIABILITY OR CAUSES OF ACTION HOWEVER ALLEGED OR ARISING, UNLESS OTHERWISE PROHIBITED BY LAW, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, BREACH OF CONTRACT, OR ANY OTHER CLAIM WHETHER IN TORT, CONTRACT OR EQUITY.UNDER NO CIRCUMSTANCES SHALL EITHER PARTY PURSUE CONSEQUENTIAL DAMAGES AGAINST THE OTHER. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY PURSUE DAMAGES RELATED TO THE INCREASE OR DECREASE IN VALUE OF ANY CRYPTOCURRENCY AGAINST THE OTHER PARTY. ANY LIABILITY FOR LOSS OF CRYPTOCURRENCY OR WHICH IS MEASURABLE IN CRYPTOCURRENCY ARISING UNDER THIS AGREEMENT SHALL BE FIXED IN DOLLAR AMOUNT BASED ON THE VALUE OF THE CRYPTOCURRENCY AT THE TIME OF LOSS.THE RIGHTS HEREIN GRANTED TO THE MEZRICH NFT PROJECT ARE OF A UNIQUE CHARACTER OF SUCH VALUE THAT THEIR LOSS COULD NOT ADEQUATELY BE COMPENSATED IN DAMAGES IN AN ACTION AT LAW, AND A BREACH BY SCREENPLAY TOKEN HOLDER OF ANY MATERIAL PROVISION HEREUNDER WILL CAUSE IRREPARABLE INJURY. THEREFORE, YOU EXPRESSLY AGREES THAT THE MEZRICH NFT PROJECT SHALL BE ENTITLED TO SEEK EQUITABLE RELIEF BY WAY OF A TEMPORARY RESTRAINING ORDER, SPECIFIC PERFORMANCE, PRELIMINARY OR PERMANENT INJUNCTION OR OTHERWISE TO PREVENT THE BREACH OF THIS AGREEMENT AND TO SECURE ITS ENFORCEMENT.
This Agreement contains the entire agreement between the parties relative to the Project and supersedes any other prior understandings, written or oral, between the parties with respect to this subject matter. No variations, modifications, or changes in the Agreement are binding on any party to the Agreement unless set forth in a document duly executed by or on behalf of such parties. To the extent there is a conflict between this Agreement and another executed document between the parties related to the Project (whether the other document is executed before or after this Agreement), the terms of this Agreement control except to the extent that the other document specifically identifies a section of this Agreement and states that it is amending that particular section.
Legal and Other Expenses.
The Project and you will pay each of their own “out-of-pocket” expenses incurred in connection with the administration or enforcement of this Agreement, including personal, consulting and agency/broker fees and costs, as applicable.
Modification and Waiver.
No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the parties hereto. No waiver by either of the parties of any breach by the other party of any condition or provision of this Agreement to be performed by the other party shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the Parties in exercising any right, power, preference, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power, preference, or privilege.
Acknowledgement of Full Understanding.
You expressly acknowledge and agree that you have fully read, understand and voluntarily enter into this Agreement of your own volition. Further, you acknowledge and agree that you have had an opportunity to ask questions and consult with an attorney of your choice before signing this Agreement. [electronic signature]