SPIDER-MAN: NO WAY HOME™ NFT Digital Collectible Terms

By obtaining a unique, non-fungible token (such non-fungible token, an “NFT”), either by redemption on the www.wdny.io website (the “Site”) operated by WAX following a purchase of an AMC movie theater ticket and attendance at an AMC movie theater to see “Spider-Man^TM: No Way Home” on December 16, 2021, including scanning your AMC purchased ticket upon entry to the theater, or a subsequent transfer from the prior owner of the NFT, you agree to these NFT Digital Collectible Terms by and between you and Columbia TriStar Marketing Group, Inc. (“CTMG”) (collectively, the “Terms”).

CMTG may update these Terms (1) to reflect changes in the usage of the NFT, (2) for legal, regulatory, or security reasons, or (3) to prevent abuse or harm. If CTMG materially changes these Terms, we’ll provide you with reasonable advance notice and the opportunity to review the changes, except in urgent situations, such as preventing ongoing abuse or responding to legal requirements.

PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL AND NOT A CLASS-WIDE OR CONSOLIDATED BASIS TO RESOLVE ANY PAST, PENDING, OR FUTURE DISPUTES BETWEEN YOU AND CTMG (AND, IF APPLICABLE, CTMG’S LICENSORS), RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS OF ANY KIND.  IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION ON A RETROACTIVE BASIS, YOU MAY OPT OUT OF THE ARBITRATION PROVISION WITHIN THIRTY (30) DAYS BY FOLLOWING THE INSTRUCTIONS PROVIDED AT THE END OF SECTION 10, BELOW.

1. The NFT is a unit of data, which may be part of a series of such data units, created by or on behalf of CTMG, that resides on the WAX blockchain and is specifically associated with one or more works of authorship owned or controlled by CTMG (“Digital Content”) such that, if you own the NFT, you can access such Digital Content through the NFT pursuant to these Terms (each NFT combined with the right to access the Digital Content associated with such NFT (subject to the terms and conditions of these Terms) shall be collectively referred to as the “Digital Collectible”). It is important to understand, and you hereby acknowledge and agree, that the NFT is separate from the Digital Content; the NFT itself is sold or otherwise transferred to you and, by owning the NFT, you receive the rights to access the Digital Content through the NFT, subject to and in accordance with these Terms. The Digital Content is neither stored nor embedded in the NFT, but is accessible through the NFT, subject to compliance with these Terms.
    
2. Subject to your compliance with these Terms, CTMG hereby grants to you, to the extent of CTMG’s rights in the Digital Content, and solely for so long as you own the NFT, the worldwide, non-exclusive, revocable, non-transferable, non-assignable, non-sublicensable worldwide right to access, view, and/or display the Digital Content associated with the NFT as part of the Digital Collectible, solely for your own personal, non-commercial use. Except as expressly set forth herein, all rights in the Digital Content are expressly reserved by CTMG and the NFT you obtained does not include any rights to the Digital Content, except as expressly provided in these Terms. Without limiting the foregoing, and for the avoidance of doubt, your ownership, possession, or control of the NFT does not provide you any ownership, copyright, title, or similar interest in any Digital Content.
    
3. In connection with the Digital Collectible, you have no rights to and may not, nor may you permit any third party to, do or attempt to do any of the following without CTMG’s express prior written consent in each case: (i) modify the Digital Content associated with the Digital Collectible in any way, including, without limitation, the sounds, shapes, designs, drawings, attributes or color schemes; (ii) use the Digital Content associated with your Digital Collectible, including the name, likeness, image or persona of any individual or character associated with such Digital Content (“Persona”), or any other elements of the Digital Content, to advertise, market, promote, or sell any product or service or otherwise use the Digital Content or any Persona associated with your Digital Collectible for your or any third party’s commercial benefit; (iii) use the Digital Content or any Persona associated with your Digital Collectible in connection with images, videos or other forms of media that depict hatred, intolerance, violence, cruelty, political matters, X-rated material, nudity or partial nudity, materials exposing cruelty, physical, or emotional acts against any person or animal that are primarily intended to hurt or inflict pain, any prescription or habit-forming drugs, drug-related paraphernalia, firearms, tobacco products, alcohol, gambling, embarrassing personal hygiene products, adult-oriented or salacious products or services, or anything else that could reasonably be found to constitute hate speech, infringe upon the rights of others, generally be considered untrue, defamatory, obscene, profane or indecent, or otherwise harm or reasonably be likely to harm CTMG's (or any of its licensors') names, brands, or reputation or contravenes applicable laws or CTMG's policies or guidelines; (iv) use the Digital Content in movies, videos, or any other forms of media, including, without limitation, the creation or minting of any new non-fungible tokens; (v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain) or otherwise commercialize merchandise that includes, contains or consists of the Digital Content (including any elements thereof) or any Persona associated with the Digital Collectible; (vi) attempt to trademark, copyright or otherwise acquire additional intellectual property rights in or to the Digital Content or any Persona associated with the Digital Collectible(s); (vii) otherwise utilize the Digital Content and the Digital Collectible for your or any third party's commercial benefit or personal gain (including, without limitation, crowd-funding or similar activities); (viii) create, sell, or attempt to create or sell, fractionalized interests in the NFT or the Digital Collectible; or (ix) separate, unlink, or decouple the Digital Content or any Persona from the NFT with which it is associated to form the Digital Collectible. CTMG may use or implement technical measures with respect to the security of the Digital Content or Digital Collectible and you will not take any action to interfere with, circumvent, disable or otherwise obstruct any such security-related features or other digital rights management functions associated with the Digital Content or Digital Collectible or reverse engineer or take any other action that may affect the technology associated therewith.  
    
4. The Digital Collectible may incorporate intellectual property, including copyrighted materials, trade names, trademarks or service marks, Digital Content and Persona, of CTMG or its licensors (the “IP”). As between you and CTMG, the Digital Content and all other such IP is owned by CTMG. Your use of such IP is subject to the rights granted above and any additional restrictions imposed by the owner(s) of such IP to the extent that CTMG informs you of such additional restrictions, and you may not use any such IP in connection with any business, product or service, or in any manner that may imply endorsement of any business, message, product or service, or that is likely to cause confusion or dilute, blur, or tarnish such IP. All use of such IP, including any goodwill generated by such use, shall inure to the benefit of CTMG, and its affiliates and/or its and their licensors, as applicable. 
    
5. The Digital Collectible is made available from the United States and is not intended by CTMG and its affiliates to be subject any non-U.S. jurisdiction or law. The Digital Collectible may not be appropriate or available for use in some non-U.S. jurisdictions. Any use, sale or transfer of the Digital Collectible is at your own risk, and you must comply with all applicable laws, rules and regulations in connection with any such activities.
    
6. THE DIGITAL COLLECTIBLE IS INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY. IT IS NOT A “SECURITY,” AS DEFINED UNDER THE U.S. FEDERAL SECURITIES LAWS, OR UNDER THE SECURITIES LAWS OF ANY U.S. STATE.
    
7. The limited license set forth in Section 2 applies only to the extent you continue to own the NFT. You may sell, assign or otherwise transfer the NFT to a third party, provided that the following conditions are met:
   
   a. such sale, assignment or other transfer is conducted through an online non-fungible token platform that cryptographically verifies that you are the actual owner of the NFT being transferred (“Platform”);
   b. such sale, assignment or other transfer must comply with (i) such Platform’s applicable terms and (ii) any applicable laws, regulations, regulatory guidance, and rules;
   c. prior to such sale, assignment or other transfer, you must (i) provide written notice to the would-be transferee that such transferee’s use of (including any access to) the Digital Collectible will be conditional upon such transferee entering into the then-current version of these Terms, and (ii) ensure that such transferee is provided with an opportunity to review these Terms; and
   d. such secondary sale, assignment or other transfer, and any future sale, assignment or other transfer by the secondary purchaser, assignee or transferee shall be free of any commission, royalty and/or other forms of percentage based transaction fees. The foregoing restriction shall be set it the NFT smart contract.  
   
   If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of your NFT for any reason through any means, your rights under Section 2 will immediately terminate (without the requirement of notice) with respect to the Digital Content associated with your NFT. Your rights under Section 2 will also immediately terminate (without the requirement of notice) if you breach these Terms.
   
   Without limiting the foregoing, if you offer or list any NFT for sale, or use any NFT to create or offer any asset, listing or collection, or take any other action in a manner that violates these Terms, any applicable terms of use governing marketplace, platforms, or distribution channels on which you obtained the NFT ("Platform Terms"), or any applicable laws, CTMG or its designee(s) may take corrective actions, as appropriate, including but not limited to removing, deleting or disabling the NFT, corresponding Digital Content or Digital Collectible, listing, or collection, disabling access to or services relating to the NFT or any corresponding Digital Content or Digital Collectible, deleting your user account, destroying inappropriate metadata stored on CTMG's or its designees' servers, and/or permanently withholding any payments that would otherwise be made to you.
    
8. CTMG PROVIDES THE NFT, AND GRANTS THE RIGHTS DESCRIBED HEREIN TO THE DIGITAL CONTENT ASSOCIATED WITH SUCH NFT, TO YOU, ON AN “AS IS” BASIS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT (A) THE DIGITAL CONTENT ASSOCIATED WITH THE NFT YOU HAVE RECEIVED IS NOT NECESSARILY RARE, UNIQUE OR EXCLUSIVE, (B) THERE MAY BE IDENTICAL COPIES OF THE DIGITAL CONTENT ASSOCIATED WITH THE NFT THAT YOU HAVE RECEIVED, (C) CTMG MAKES NO CLAIMS WITH RESPECT TO IDENTITY, LEGITIMACY, OR AUTHENTICITY OF THE DIGITAL CONTENT, DIGITAL COLLECTIBLE OR NFT THAT YOU HAVE RECEIVED, (D) YOU ARE SOLELY RESPONSIBLE FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ANY NFT YOU RECEIVE OR OF ANY LINKED OR ASSOCIATED DIGITAL CONTENT OR THE DIGITAL COLLECTIBLE, AND (E) IN NO EVENT WILL YOU HAVE RECOURSE AGAINST CTMG'S OR ITS LICENSORS FOR ANY CLAIMS OR LOSSES WITH RESPECT TO ANY NFT YOU HAVE RECEIVED OR ANY DIGITAL CONTENT ASSOCIATED WITH SUCH NFT. IN NO EVENT WILL CTMG OR ITS AFFILIATES, OR ITS AND THEIR LICENSORS, BE LIABLE FOR ANY (I) LOSS OF, OR INABILITY FOR YOU TO ACCESS, THE DIGITAL CONTENT OR DIGITAL COLLECTIBLE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, AS A RESULT OF ANY DOWNTIME, FAILURE, OBSOLESCENCE, REMOVAL, TERMINATION, FAILURE TO IMPLEMENT ANY TECHNICAL OR OTHER CONTINGENCIES, OR OTHER DISRUPTION RELATING TO THE STORAGE OF OR ACCESS TO ANY DIGITAL CONTENT OR DIGITAL COLLECTIBLE OR (II) INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER NON-DIRECT DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM AGGREGATE LIABILITY OF CTMG, ITS AFFILIATES AND ITS AND THEIR LICENSORS FOR ALL DAMAGES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE ONE HUNDRED U.S. DOLLARS ($100).  
    
9. You agree that you shall defend, indemnify and hold harmless CTMG and its affiliates, and its and their respective directors, officers, employees, licensors, content providers, agents and representatives, from any third-party claim or action arising from your breach or alleged breach of these Terms or any unauthorized use of the Digital Content or the Digital Collectible.
    
10. ARBITRATION AGREEMENT.  Please read the following section carefully because it requires you to waive your right to a jury trial and arbitrate certain disputes and claims with CTMG and limits the manner in which you can seek relief from us. No class or representative actions or arbitrations are allowed under this agreement.
    
    Except for small claims disputes in which you or CTMG seek to bring an individual action in small claims court located in the county of your billing address or disputes in which CTMG seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and CTMG waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute that you have against CTMG, you agree to first contact CTMG and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to CTMG by certified mail addressed to:
    
    Columbia TriStar Marketing Group, Inc.
    10202 West Washington Boulevard
    Capra Building
    Culver City, California 90232
    Attention: Senior Vice President, Business / Legal Affairs
    Email:       Legal_Marketing_Notices@spe.sony.com
    
    The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and CTMG cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may, as appropriate in accordance with this section, submit the dispute to binding arbitration administered by JAMS. All submitted disputes will be resolved through confidential binding arbitration held in in Los Angeles, California in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason. To the extent that you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of California. The arbitrator’s award will be final and binding and may be entered into as a judgment in any court of competent jurisdiction.
    
    You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the NFT or these Terms must be filed within one (1) year after such claim of action arose or be forever banned, which means that you will not have the right to assert the claim.
    
    You and CTMG agree that these Terms affect interstate commerce and that the enforceability of this section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), and the laws of the State of California, without regard to its conflict of laws provisions. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms.
    
    The arbitrators, CTMG, and you will maintain the confidentiality of any proceedings, including but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrators will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.
    
    You and CTMG agree that for any arbitration you initiate, you will pay the filing fee and CTMG will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, CTMG will pay all JAMS fees and costs. You and CTMG agree that the state or federal courts of the State of California and the United States sitting in Los Angeles, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
    
    Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
    
    YOU AND CTMG AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and CTMG agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims and may not otherwise preside over any form of a representative or class proceeding. The arbitrator 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.
    
    You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this section by contacting CTMG by certified mail addressed to:
    
    Columbia TriStar Marketing Group, Inc.
    10202 West Washington Boulevard
    Capra Building
    Culver City, California 90232
    Attention: Senior Vice President, Business / Legal Affairs
    Email:       Legal_Marketing_Notices@spe.sony.com 
    
    In order to be effective, the opt out notice must include your full name, address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in Federal and State Courts in California. Except to the extent that arbitration is required above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any dispute may only be instituted in state or federal court in Los Angeles County, California . Accordingly, the Parties consent to the exclusive personal jurisdiction and venue of such courts for such matters.
    
    If any portion of this arbitration section is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the arbitration section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the arbitration section; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this arbitration section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this section will be enforceable.
     
11. These Terms do not, and shall not be construed to, create any partnership, joint venture or agency between you and CTMG. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. You shall not assign, transfer or otherwise dispose of these Terms (including any of your rights or obligations under these Terms), and any purported assignment, transfer or other disposition shall be null and void. These Terms constitute the entire agreement between you and CTMG with respect to the NFT and the Digital Collectible and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and CTMG relating to the NFT, the Digital Content, or the Digital Collectible, including, without limitation, any Platform Terms. Without limiting the foregoing, in the event of a conflict between these Terms and any Platform Terms, these Terms control.  
     
12. You agree that, in addition to CTMG, any of CTMG’s affiliates and licensors, as applicable, associated with the Digital Content will have the right to enforce these Terms and any of its rights hereunder against you.

Effective Date: December 15, 2021