Asynchronous Inc., Visual Art Supplement to Terms of Use

Version 2.1

Last Revised: April 26, 2021

This Visual Art Supplement to Terms of Use (“Visual Art Terms”) is incorporated into and made a part of the Asynchronous Art, Inc. Terms of Use (“Terms of Use”) as Additional Terms and constitutes a legally binding agreement between you, the individual or entity uploading, publishing, or otherwise making Visual Works (as defined below) available via the Site (the “Creator” as defined in the Terms of Use which can be found at http://www.async.art/terms) and Asynchronous Art, Inc. (“Async,” “Company,” “us,” “our,” and “we”). These Visual Art Terms shall supplement all applicable terms in the Terms of Use and shall not be construed to supersede or limit such terms in any manner. To the extent that there is a conflict between these Visual Art Terms and the Terms of Use, these Visual Art Terms shall control to the extent necessary to resolve such conflict Your submission of your application to become a Creator constitutes your agreement to these Visual Art Terms. You agree and acknowledge that Async has sole discretion regarding acceptance of your application to become a Creator.  Capitalized terms not defined here are defined in the Terms of Use.

  1. Connecting the Wallet. Before you can upload a visual-only Creative Work (“Visual Work”) as a Creator, you must first upload a copy of photo identification (any form of government issued identification that contains a photo) to the Async website; and connect a Wallet to the Site using a public address. Please review the Privacy Policy for more information on how we deal with your PII. Once you have completed these steps, Async will add your public address to a list of whitelisted addresses it maintains (“Whitelisting Services”). You acknowledge and agree that Async may remove a public address from the whitelist at any time. You must only connect a Wallet that you have exclusive control and ownership of. You may also choose to assign a username and avatar that will be linked to your Wallet. If a username is not provided, you will only be identified by your Wallet address.
  2. Uploading the Visual Work. Once you have connected a Wallet, you may upload your Visual Work to the Site. You accept and acknowledge that the Visual Work will be uploaded and hosted on a cloud-based service provider of Async’s choosing. Async will subsequently upload the Visual Work onto an IPFS service provider of Async’s choosing as a means of backing up the Visual Work (“IPFS Hosting Services”). You acknowledge and agree that Async may change service providers at any time without notice to you.
  1. License Grant.  You hereby grant to Async an exclusive, irrevocable, fully paid-up, worldwide, fully sublicensable license to copy, store, display and/or perform the Visual Work (and, if the Visual Work includes any Layer, to copy, store, display and/or perform such Layer alone or as part of a Master). In furtherance and not in limitation of the preceding sentence, it is acknowledged and agreed that the license granted hereby includes the right to copy, store, display and/or perform the Visual Work: (a) on the on the Site or any other consumer applications or any social media accounts owned, operated or managed by Async or any of Async’s sublicensees (collectively, “Async Applications”); (b) in advertisements for the Async Applications (the “Advertisements”); and (c) on physical media (e.g., canvas, lithograph, poster, etc.) sold through the Async Applications (“Physical Displays”).
  2. Creator Attributes. By uploading or otherwise making an Visual Work available to or on the Site, to the fullest extent permitted by applicable law, you hereby grant to Async, its affiliates, successors, licensees, and assigns a non-exclusive, royalty free, fully paid-up, worldwide right and license to use, make copies of, store, display, transmit, perform, synchronize, stream, broadcast, and distribute your name, nickname, image, logo, trademark, voice, likeness, profile information, biographical material (as applicable), and other Creator-identifying attributes solely to (i) identify such you as the source of the Visual Work and (ii) in connection with the advertising, marketing, and promotion of such Visual Work.  
  3. Master License Grant. In furtherance and not in limitation of Section 2.1, you hereby acknowledge and agree that Async may sublicense, to each holder of a Token minted pursuant to Section 4 for the purpose of representing the Master (i.e., the complete Visual Work) [and to each holder of a Token minted pursuant to Section 4 for the purpose of representing any Layer(s) included in such Master] the right to display and/or perform such Master (including any Layers thereof) for personal, non-commercial use on their personal electronic devices (such as TVs, computer monitors, display panels, mobile devices, laptops or desktop computers) through the Async Applications on such devices (for example, any of Async’s or its sublicensees’ applications on Apple TV). Neither Async nor any of Async’s sublicensees shall grant the sublicense contemplated by this Section 2.3 to any person who does not hold a Token minted pursuant to Section 4.
  4. Layer-License Grant.  If the Visual Work includes Layers, Creator hereby grants to Async an exclusive, irrevocable, fully paid-up, worldwide license to modify the corresponding Master, or the manner in which such Master is displayed and/or performed on Async Applications, by selecting which among the series of images and/or audio files comprising each Layer is to be displayed and/or performed within such Master on any Async Application(s) at a given time. Such license shall be fully sublicensable by Async (and its sublicensees) to the holder of each Token representing a Layer, for so long as such person continues to hold such Token. Neither Async nor any of Async’s sublicensees shall grant the sublicense contemplated by this Section 2.4 to any person who does not hold a Token minted pursuant to Section 4 for the purpose of representing Layer(s).  
  5. Commercial License.  [If, in uploading the Visual Work to an Async Application, Creator elected to enable commercialization of the Visual Work, ] Creator acknowledges and agrees that Async or its sublicensees may charge users of the Async Applications for viewing and/or performing the Visual Work, for the preparation and sale of Physical Displays and for sales of Tokens representing the sublicenses referred to in Sections 2.2 and 2.3. Async acknowledges and agrees that the Creator or its sublicensees may charge users for viewing and/or performing the Visual Work.
  6. Async understands and agrees that the Creator retains all right, title, and interest in and to the Master and Layer, whether modified or unmodified.  To effectuate the Creator’s ownership, to the extent allowed by applicable law, Async hereby assigns, transfers, and conveys to Creator all right, title, and interest it may or will hold in and to the Master and Layer, both as modified and as unmodified, and hereby waives any moral rights and other retained rights.  To the extent any rights in and to the Master or Layer can be neither waived nor assigned, Async hereby grants to the Creator an exclusive and unlimited, royalty-free, perpetual, transferable, sublicensable, worldwide, fully paid-up license, to use such rights and the Master and Layer (whether modified or unmodified) in any and all ways.
  1. Limited Edition Sales.
  1. You may apply for, and Async may grant you, the ability to sell limited-edition versions of your Visual Works on the Platform (“Limited Edition Sale”). Async will decide, in its sole discretion, whether to facilitate the Limited Edition Sale.
  2. You accept and acknowledge that you must provide your bank account information to Async in order to conduct the Limited Edition Sale. You further accept and acknowledge that certain proceeds of the Limited Edition Sale may be paid directly to Async via Async’s payment processor, and that Async’s payment processor will subsequently transfer the proceeds of the Limited Edition Sale, minus any fees owed to Async, to the bank account specified in your profile at the end of every month, provided that the Creator has accrued at least $USD 100 in sales.
  3. Where the proceeds of the sale have been paid in ETH, Async will transfer the proceeds of the Limited Edition Sale, minus any fees owed to Async, to the Creator’s connected Wallet at the end of every month, provided that the Creator has accrued at least $USD 100 worth of ETH in sales as measured by the spot rate published on Coinbase Pro, or if Coinbase Pro is unavailable, then the spot rate published on Kraken at 11.59pm on the date of the payout.
  4. All monthly proceeds below $USD 100 will rollover to the next month for the purposes of determining whether the monthly payout will occur.
  5. The launch of the Limited Edition Sale does not guarantee you the right to receive proceeds of the Limited Edition Sale. You acknowledge and agree that Async may decline or delay the Limited Edition Sale to avoid over or under subscription, where Async receives notice from the payment processor that there has been a chargeback, or as it deems appropriate. 
  1. Delisting Visual Works.
  1. Even if your profile has been deleted from the Site, you will continue to be subject to the Terms of Use and these Visual Art Terms, and your Visual Work will continue to be listed on the Site. You may request that Async delist your Visual Work from the Site at any time by emailing Async your request at privacy@async.art. However, Async shall not be required to honor or respond to delisting requests, except as otherwise required under applicable law. In the event that Visual Work is delisted from the Site, such Visual Work may nevertheless continue to be hosted on the IPFS server and Collectors may continue to own and trade the Master and Layer Tokens associated with the Visual Work.
  2. You agree and acknowledge that Async may delist your Visual Work from the Site or request the IPFS service provider to cease hosting your Visual Work on the IPFS server at any time, for any reason, at our sole discretion, including for any use of the Site in violation of the Visual Art Terms or Terms of Use.
  3. YOU AGREE AND ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING YOUR OWN BACKUP COPIES OF YOUR VISUAL WORK, INCLUDING ANY MODIFIED AND UNMODIFIED VISUAL WORKS.  YOU UNDERSTAND AND AGREE THAT ASYNC MAY DISCONTINUE PROVIDING THE WEBSITE AND/OR THE SERVICES AT ANY TIME, AND ASYNC IS NOT AND WILL NOT BE LIABLE FOR PRESERVING OR FAILING TO PRESERVE THE VISUAL WORK, INCLUDING ANY MODIFIED AND UNMODIFIED VISUAL WORKS.
  1. Minting.
  1. Self-Minting. Once the Visual Work has been uploaded on the Site, you will be able to mint Tokens using the Smart Contract in accordance with these Visual Art Terms. You agree and accept that for each Master, you can mint only one Token, and for each Layer, you can mint only one Token. Our Site will autofill the relevant fields in your connected Wallet to assist with the minting process (“Autofilling Services”).
  2. Limited Editions. Where a Creator has launched a Limited Edition on the Site, and the purchaser has redeemed the corresponding Voucher, Async will mint the Limited Edition Tokens using the Smart Contract and transfer the Limited Edition Tokens to the purchasers connected Wallet on behalf of the Creator within 72 hours of redemption.  
  1. Fees and Visual Work Sales.
  1. Fees. For all sales of Visual Works other than Limited Edition Sales, you agree that 10-20% of your first sale (“Primary Sale”) will go to Async as a commission fee (“Commission”), in acknowledgment of Async’s provision of the Marketplace Services, Rendering Services, Browsing Services, Whitelisting Services, IPFS Hosting Services, and Autofilling Services.
  2. Primary Sales. You agree that all Primary Sales of new Tokens minted will be executed via our Site. If you conduct your Primary Sale of the Master or Layer Tokens on any third-party platform or directly with any Collector, this will be considered a breach of both these Visual Art Terms and the Terms of Use.
  3. Royalties. You have the right to receive 10% of any secondary sales of your minted Tokens or Limited Editions (“Secondary Sales”) executed on our Site.
  4. Secondary Sales. You acknowledge that Async has no control over Secondary Sales that occur outside of our Site, and that Secondary Sales may occur directly between Collectors or on third party exchange platforms (“Exchanges”). Async makes no representation to rights that may arise from transactions that occur outside of our Site. Async may enter into agreements with Exchanges that list Master and Layer Tokens (“Affiliated Exchanges”). You acknowledge that Async has no obligation to maintain any arrangements with Affiliated Exchanges, and that proceeds received by Async from Affiliated Exchanges in connection with Secondary Sales of your Visual Works will be delivered to you in Async’s discretion.
  5. Limited Editions. For Limited Edition Sales, you agree that 25% of the primary sale will go to Async as a fee, in acknowledgement of Async’s provision of Limited Edition Sales services.  
  1. Termination.  Subject to Section 15 of the Terms of Use, these Visual Art Terms will remain in full force and effect while your Visual Work is listed on the Site.