Please read this Arcade.xyz Platform Agreement (the "Agreement") carefully. This Agreement is a legally binding agreement between you (" you", "your" or "User") and Non-fungible Technologies, Inc. ("NFTech" or "we" or "us"). By clicking or tapping any button or box marked "I Accept," "I Agree," or "OK" (or a similar term) in connection with this Agreement, or by using or accessing the Arcade.xyz Platform (as defined below), you acknowledge and agree to this Agreement and you confirm that you are of legal age where you live and have the legal capacity to enter into this Agreement.
This Agreement is between you and NFTech concerning your use of certain NFTech services in connection with its decentralized, peer-to-peer lending platform that allows the creation of loans collateralized by non-fungible tokens ("NFTs"), fungible tokens and/or other crypto-assets (the " Arcade.xyz Platform"). YOU ACKNOWLEDGE AND AGREE THAT NEITHER NFTECH NOR THE PLATFORM IS A LENDER OR BORROWER OF LOANS, AND THAT YOUR USE OF THE PLATFORM DOES NOT MAKE NFTECH OR THE PLATFORM A LENDER OR BORROWER OF LOANS.
If you are an individual accessing or using the Arcade.xyz Platform on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an "Organization"), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to "you" and "User" in this Agreement will refer to both the individual using the Arcade.xyz Platform and to any such Organization.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 19 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
We may change, modify or supplement this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a modified Agreement through the Arcade.xyz Platform. No such changes will apply to any dispute between you and us arising before the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes. The "Last Updated" legend above indicates when this Agreement was last changed. Your use of the Arcade.xyz Platform after any changes to this Agreement will constitute your acceptance of such changes. We may, at any time and without liability: (a) modify or discontinue all or part of the Arcade.xyz Platform; (b) charge, modify or waive any fees required to use the Arcade.xyz Platform; or (c) offer opportunities to some or all users.
You may not use the Arcade.xyz Platform outside the scope set forth in this Agreement without the prior written consent of NFTech, which may be withheld in NFTech's sole discretion. NFTech reserves the right to refuse, modify, or terminate access to or use of all or part of the Arcade.xyz Platform to anyone for any reason at our discretion.
- Registration; Accounts.
You may need to register to use all or part of the Arcade.xyz Platform. You must accurately and completely supply all requested information in order to complete the registration process. You represent and warrant that any information you provide in connection with the Arcade.xyz Platform is and will remain accurate and complete at all times during your use of and access to the Arcade.xyz Platform, and that you will maintain and update such information as needed. We may also establish additional or different requirements from time to time, by posting such requirements on our website or otherwise communicating them to you.
When your account becomes active on the Arcade.xyz Platform, you may have rights and responsibilities as a potential requestor of a loan (a " Borrower") or a potential provider of such loans (a "Lender"), or both. We may reject, or require that you change, any username, password or other information that you provide to us in registering. Your username and password are for your personal use only and should be kept confidential. You, and not NFTech, are responsible for any use or misuse of your username or password, and you must promptly notify us of any breach or unauthorized use of or access to your username or password, or your account. You will be solely liable for all activity arising from your access to, use of, or any other act or omission with respect to the Arcade.xyz Platform, whether or not authorized by you (including any acts or omissions by any users for whom you have submitted a user authorization form).
You are responsible for obtaining and maintaining all hardware, software (and related licenses) and communications equipment necessary to access and use the Arcade.xyz Platform and for paying all third-party access charges (e.g., ISP, telecommunications, etc.) incurred while using the Arcade.xyz Platform. You acknowledge that you have been advised of and can comply with all minimum networking, hardware, software (and related licenses), firewalls and/or environmental conditions, and communications requirements applicable to the Arcade.xyz Platform.
- Rules of Conduct.
In connection with the Arcade.xyz Platform, you must not:
- Borrow or lend in a manner for which you are not authorized or licensed to do so, or for which you are not permitted to do so either by authorization or licensure or by any applicable federal, state, local or foreign laws (including common law), codes, statutes, ordinances, rules, regulations, regulatory bulletins, interpretations or guidance or orders, decrees and orders of, official releases or any other requirements by, any governmental authority or agency (collectively, "Applicable Law");
-Use the Arcade.xyz Platform for any purpose or in connection with any activity that is fraudulent, illegal or otherwise tortious or unlawful;
- In connection with your access and use of the Arcade.xyz Platform, discriminate against any Borrower member or group on the basis of race, color, religion, national origin, sex, marital status, age, sexual orientation, military status, the Borrower member's source of income, or any other basis prohibited by any Applicable Law, including the Equal Credit Opportunity Act and its implementing regulation, Regulation B or the Fair Housing Act;
Post, transmit or otherwise make available through or in connection with the Arcade.xyz Platform any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious or illegal, including in connection with the disclosure of insider information under securities law or of another party's trade secrets; (c) obscene, indecent, pornographic or otherwise objectionable; (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner; (e) information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (f) information or content that you know is not correct and current;
- Send unlawful unsolicited commercial messages through the Arcade.xyz Platform;
- Post, transmit or otherwise make available any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a "Virus");
- Interfere with or disrupt the operation of the Arcade.xyz Platform or the servers or networks used to make the Arcade.xyz Platform available, including by hacking or defacing any portion of the Arcade.xyz Platform; or violate any requirement, procedure or policy of such servers or networks;
- Perform testing of the Arcade.xyz Platform, or the systems or networks used to provide the Arcade.xyz Platform, to attempt to find vulnerabilities;
- Run a computer program, a set of computer programs, or other operations to attempt to assess the relative performance of the Arcade.xyz Platform, or the systems or networks used to provide the Arcade.xyz Platform;
Restrict or inhibit any other person from using the Arcade.xyz Platform;
- Harvest or collect information about users of the Arcade.xyz Platform;
- Interfere with any other user's property on the Arcade.xyz Platform;
- Remove any copyright, trademark or other proprietary rights notice from the Arcade.xyz Platform or any NFTech Material (defined in Section 8 below);
- Reproduce, modify, adapt, translate, create derivative works of, sell, resell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Arcade.xyz Platform, or any NFTech Material, except as expressly authorized herein;
- Reverse engineer, decompile or disassemble, or attempt to discover the source code of underlying ideas or algorithms of, any portion of the Arcade.xyz Platform, or any NFTech Material, except where such restriction is expressly prohibited by Applicable Law;
- Frame or mirror any portion of the Arcade.xyz Platform, or otherwise incorporate any portion of the Arcade.xyz Platform or NFTech Material into any product or service;
- Systematically download and store NFTech Material;
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or otherwise gather NFTech Material, or reproduce or circumvent the navigational structure or presentation of the Arcade.xyz Platform;
- Access or use the Arcade.xyz Platform in a way intended to avoid incurring fees or exceeding usage limits or quotas;
- Conduct or attempt to conduct a transaction or loan outside of the Arcade.xyz Platform that was initiated through the Arcade.xyz Platform (or conduct or attempt to conduct a loan transaction, where the Lender and/or Borrower were introduced through the Arcade.xyz Platform);
- Conduct or attempt to conduct business relating to loans outside of the Arcade.xyz Platform, with a Lender or Borrower that you met through the Arcade.xyz Platform; or
- Cause, assist or otherwise encourage any third party to do any of the foregoing.
We reserve the right in our sole discretion to terminate or suspend any account that violates the foregoing or any other provision of this Agreement, and any account that has been inactive for a substantial period of time.
- Listings; Transactions.
The Arcade.xyz Platform may make available the opportunity for Borrowers to submit requests, proposals, terms, descriptions and other information in connection with potential loans ("Listing"). It is your responsibility to ascertain and obey all Applicable Laws regarding Listings.
The Arcade.xyz Platform may also make available the opportunity for Lenders to accept a Borrower's loan request contained in the Listing and transfer funds to the Borrower ("Transaction"). If you wish to participate in a Transaction, you may be asked to supply certain relevant information. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
LISTINGS ARE MADE AVAILABLE BY YOU AND BY THIRD PARTIES, AND NOT BY NFTECH. WE MAKE NO REPRESENTATIONS AS TO THE COMPLETENESS, ACCURACY, RELIABILITY, VALIDITY OR TIMELINESS OF LISTINGS OR THE ENFORCEABILITY OF THE LOANS. TRANSACTIONS ARE SOLELY BETWEEN YOU AND OTHER USERS. NFTECH IS NOT A LENDER OR BORROWER OR OTHERWISE A PARTY TO ANY TRANSACTION, AND IN CONNECTION WITH YOUR REQUEST FOR OR PROVISION OF ANY LOANS, NFTECH IS NOT ACTING IN ANY AGENCY OR FIDUCIARY CAPACITY AND ASSUMES NO ADVISORY OR FIDUCIARY RESPONSIBILITY THEREWITH. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS, AND FOR ANY TRANSACTIONS. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR INTERACTIONS OR DISPUTES BETWEEN YOU AND ANY OTHER USER, AND/OR TO ENFORCE THE TERMS OF THIS AGREEMENT AGAINST YOU OR ANY OTHER USER. WE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR (A) INTERACTIONS OR DISPUTES BETWEEN YOU AND OTHER USERS; (B) LISTINGS BY YOU OR OTHER USERS; (C) TRANSACTIONS; (D) YOUR OR ANY OTHER USER'S ACTION, INACTION OR BREACH OF OUR TERMS; OR (E) OUR ENFORCEMENT OF (OR FAILURE TO ENFORCE) OUR TERMS AGAINST YOU OR ANY OTHER USER.
For the avoidance of doubt, NFTech will have no obligation to provide any consulting, implementation, or other professional services, except as may be set forth in a separate written agreement between you and NFTech.
- Borrower Obligations.
In addition to your other obligations under this Agreement, this Section 5 is applicable to you in your capacity as a Borrower.
(a) You agree to comply with NFTech's Borrower policies and practices, as set forth herein, as may be amended from time to time, and agree that:
- You assume full responsibility for the loan proposal(s) offered and the accuracy and detail of the Listing(s), and you warrant that all information contained in each of your Listings and related loans is correct, accurate, verifiable and not misleading;
- You are prohibited from attempting to complete or completing outside of the Arcade.xyz Platform any Listing or Transaction listed in connection with the Arcade.xyz Platform;
- NFTech may revise data associated with Listings to supplement, remove, or correct information as deemed necessary, while maintaining the integrity of the Listing, and you shall promptly notify NFTech in writing if you believe that any such supplementation, removal or correction is inaccurate, incomplete or misleading;
- If a loan proposal is accepted by a Lender, you will proceed according to the loan terms;
- You, and not NFTech, are responsible for re-paying the amounts loaned under a Transaction;
Subject to Section 5(b), you acknowledge that your submission of a Listing offers your NFTs, fungible tokens, or other crypto-assets as collateral in exchange for a loan;
- You will comply with all Applicable Laws in submitting each loan proposal and disclosure of Borrower information in connection with each loan; and
- You have all the necessary licenses, permits, consents, or approvals from or by, and have made all necessary notices to, all governmental agencies having jurisdiction as required by Applicable Laws.
(b) You will not be responsible for fulfilling the terms of your Listing if:
- You cancel the Listing before it is accepted and in accordance with NFTech's then-current cancellation policies; or
- Your Listing is never accepted.
- Lender Obligations.
In addition to your other obligations under this Agreement, this Section 6 is applicable to you in your capacity as a Lender.
You agree to comply with NFTech's Lender policies and practices, as set forth herein, as may be amended from time to time, and agree that:
- You are responsible for familiarizing yourself with a Listing and its associated loan terms;
- You are responsible for complying with all loan terms and payments of a Transaction;
- Your acceptance of a Listing is a commitment by you to provide the funds and abide by the terms of the loan from the applicable Borrower;
- You are entering into a Transaction in good faith and, if a loan proposal is accepted by you, will proceed according to the loan terms;
- You will have reviewed the loan(s) for conformity with Applicable Law and applicable guidelines within fifteen (15) business days before your acceptance of the loan proposal, or before the closing date of the loan, whichever is later;
- You will, in a timely manner, communicate transfer instructions to the Borrower (or if required by NFTech, to NFTech); and
- You will pay all applicable amounts to Borrower and NFTech in association with the Transaction.
- Fees; Penalties; Taxes; Audits.
The fees for the Arcade.xyz Platform (collectively, the "Fees") are as communicated to you by us from time to time, except that if we have a separate written agreement setting forth such fees, such agreement will control, and NFTech reserves the right to modify, change, supplement or add to such Fees from time to time. We will provide you with notice of any such modifications, changes, supplements or additions through the Arcade.xyz Platform, via email, or through other reasonable means, and your continued use of the Arcade.xyz Platform indicates your acceptance of such modifications, changes, supplements or additions to the Fees. NFTech reserves the right to require payment in advance.
You will be responsible for paying any Fees that arise out of a Listing or Transaction in connection with the Arcade.xyz Platform, even if terms were finalized or payment was made outside of the Arcade.xyz Platform or without coordination or facilitation by us. In particular, if you and the Borrower or Lender (as the case may be) enter into a Transaction outside of the Arcade.xyz Platform that was related to a Listing originally posted on the Arcade.xyz Platform, then you shall pay the Fee applicable to that Transaction. This provision shall not apply to transactions conducted outside of the Arcade.xyz Platform pursuant to a binding written agreement between Lender and Borrower in effect prior to Lender's and/or Borrower's first access to the Arcade.xyz Platform (as certified by an officer of Borrower and Lender upon NFTech's request). If NFTech believes that you acted to circumvent such policy, you may be subject to a range of actions, including limits on your access to the Arcade.xyz Platform, buying and selling privileges and Listing and account features, termination or suspension of your account, financial penalties, the recovery of lost current and future revenue and expenses for policy monitoring and enforcement.
NFTech is not a party to any Transaction, and does not represent that NFTech collects taxes, whether municipal, state, federal, or otherwise, with respect to any Transactions. You and any other users that are parties to a Transaction are responsible for any taxes, if any, with respect to such Transaction. You must agree to our payment method when buying or bidding through the Arcade.xyz Platform, and pay all fees and applicable taxes no later than when the Transaction consummates.
NFTech reserves the right, upon reasonable prior notice to you and during normal business hours, to itself (or through its designees) audit your usage of the Arcade.xyz Platform (including your buying and selling and other Transactions on the Arcade.xyz Platform) for the purpose of verifying your compliance with this Agreement. If such audit reveals that you have improperly used the Arcade.xyz Platform, or failed to make payments as required under this Agreement, such conduct shall be considered a material breach of this Agreement and NFTech may choose, in its sole discretion to terminate or suspend your access to the Arcade.xyz Platform and/or this Agreement, and/or invoice you for such unauthorized use based upon NFTech's standard fees in effect at the time of the audit, which you shall promptly pay to NFTech. If the underpaid fees exceed five percent (5%) of the fees actually paid, you shall also pay NFTech's reasonable costs of conducting the audit.
- Intellectual Property Rights.
Except for your User Material (as defined below), the Arcade.xyz Platform and all materials therein or made available in connection therewith, including software, data, usage data, data sets, images, text, graphics, charts, data, illustrations, logos, trademarks, service marks, and User Material of other users (the "NFTech Material"), and all intellectual property rights related thereto, are the exclusive property of NFTech and/or its licensors (including other users, as applicable). Except as expressly permitted herein, nothing in this Agreement shall be deemed to create a license with respect to any such intellectual property rights. Use of the NFTech Material for any purpose not expressly permitted by this Agreement is prohibited.
Subject to the terms and conditions of this Agreement, you are hereby granted a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to use the Arcade.xyz Platform during the term of this Agreement, for your internal use only, and only to the extent permitted by the features and functionalities of the Arcade.xyz Platform.
You may choose to, or we may invite you to, submit comments or ideas relating to NFTech or the Arcade.xyz Platform, including about how to improve the Arcade.xyz Platform or our other products and services (" Feedback"). By making available any Feedback, you hereby agree that your disclosure is gratuitous, unsolicited and without restriction and will not place NFTech under any agency, fiduciary or other obligation, and that we are free to use and otherwise exploit the Feedback (and authorize others to do so) in any way whatsoever without any additional compensation to you, and/or to publicly disclose the Feedback to others. Without limiting the foregoing, you acknowledge that, by receiving your Feedback, NFTech does not waive any rights to use similar or related ideas previously known to NFTech, or developed by its personnel, or obtained from other sources.
- User Material.
The Arcade.xyz Platform may allow users to submit, post, display, provide, or otherwise make available content such as profile information, information about NFTs, fungible tokens or other crypto-assets loan information, financial material, diligence material, messages, comments, questions, answers and other content or information, including Listings (collectively, "User Material").
WE CLAIM NO OWNERSHIP RIGHTS OVER USER MATERIAL CREATED BY YOU. THE USER MATERIAL YOU CREATE REMAINS YOURS, SUBJECT TO THE RIGHTS GRANTED IN THIS AGREEMENT. However, you understand that by providing or sharing User Material in connection with the Arcade.xyz Platform, you agree to allow others to view, edit, share, and/or interact with your User Material, in accordance with your settings on the Arcade.xyz Platform and this Agreement. NFTech has no control over and is not responsible for any use or misuse (including any distribution) by any third party of User Material.
You hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to use, analyze, collect, copy, reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify, create derivative works of or otherwise and exploit (collectively, "Use") any of your User Material, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In connection with your User Material, you represent and warrant that:
- You have the written consent of each and every identifiable natural person in the User Material, if any, to use such person's name or likeness in the manner contemplated by the Arcade.xyz Platform and this Agreement, and each such person has released you and NFTech from any liability that may arise in relation to such use.
- You have obtained and are solely responsible for obtaining all consents as may be required by Applicable Law to post any User Material relating to third parties.
- Your User Material and our use thereof as contemplated by the Arcade.xyz Platform and this Agreement will not violate any Applicable Law or infringe any rights, including intellectual property rights, of any third party.
- All of your User Material and other information that you provide to us is truthful and accurate.
NFTech takes no responsibility and assumes no liability for any User Material that you or any other user or third party makes available. You shall be solely responsible for your User Material and the consequences of making it available, and you agree that we are only acting as a passive conduit for the online distribution and publication of User Material. You agree that you may be exposed to User Material that is inaccurate, incomplete or otherwise unsuited to your purpose, and you agree that NFTech shall not be responsible or liable for any damages you allege to incur in connection with User Material. We may (but have no obligation to) monitor, evaluate, alter, or remove User Material before or after it appears on the Arcade.xyz Platform, or analyze your access to or use of the Arcade.xyz Platform, for any or no reason.
- Third Party Materials.
The Arcade.xyz Platform may make available or contain links to third-party information, products, services or other materials that are not owned or controlled by NFTech (such materials, "Third Party Materials"). NFTech does not endorse or assume any responsibility for any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness, or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading, or deceptive. Third Party Materials include Listings and other User Material.
Nothing in this Agreement shall be deemed to be a representation or warranty by NFTech with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Arcade.xyz Platform at any time. In addition, the availability of any Third Party Materials through the Arcade.xyz Platform does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider. If you access a third-party website or service from the Arcade.xyz Platform, or share your User Material on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement does not apply to your use of such Third Party Materials. You expressly relieve NFTech from any and all liability arising from your use of any Third Party Materials.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
- Compliance with Laws.
The Arcade.xyz Platform is controlled or operated (or both) from the United States, and is not intended to subject NFTech to any non-U.S. jurisdiction or law. The Arcade.xyz Platform may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Arcade.xyz Platform is at your own risk, and you must comply with all Applicable Laws in doing so. We may limit the Arcade.xyz Platform's availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
In no event shall NFTech be obligated to take any action would cause NFTech to be in violation of any Applicable Laws or would result in NFTech being an escrow agent, debt collector or consumer reporting agency under the Fair Credit Reporting Act. If a change in Applicable Laws makes the continued operation of any part of the Arcade.xyz Platform, in our sole discretion, unduly burdensome or unlawful or if a regulatory authority directs NFTech to suspend or cease operating the Arcade.xyz Platform, NFTech may cease offering the Arcade.xyz Platform and terminate this Agreement upon notice to you, and without further obligation to you, after which NFTech will return to you any applicable prepaid fees.
You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a "terrorist supporting" country; or (b) on any of the U.S. government lists of restricted end users. NFTech will not be required, either directly or indirectly, to provide goods, software, services and/or technical data that may be prohibited by export control or sanctions Applicable Laws.
You represent and warrant that:
- you have obtained all the necessary licenses, permits, consents, or approvals from or by, and have made all necessary notices to, all government agencies (whether federal, state, municipal or local) as necessary to fully perform under this Agreement, submit Listings, consummate Transactions, Use, and allow NFTech to Use, your User Material, and as required by Applicable Law;
- you are authorized by your Organization to conduct business on the Organization's behalf and to bind such Organization to the terms of this Agreement;
- you have the right to consent to this Agreement and act in accordance with its terms;
- the acceptance of and performance of this Agreement are within your corporate powers;
- you have been duly authorized by all necessary corporate action and do not require any further consent of or filing with any third party or governmental body or agency;
- you are (a) duly organized, validly existing and in good standing under the laws of the jurisdiction of your organization; (b) qualified to transact business; (c) appropriately licensed where applicable, and in good standing under the laws of each state where a relevant mortgaged property is located, or you are otherwise exempt from such qualification and not required under Applicable Law to effect such qualification; and (d) acknowledging that no demand for such qualification has been made upon you by any state or local municipality, and that, in any event, you are in compliance with the Applicable Laws of any such jurisdiction to the extent necessary to ensure the enforceability of each mortgage note and the sale of the mortgage loans as contemplated by this Agreement;
- you are able to, and will, perform each and every covenant in this Agreement;
- you are solvent and the acceptance of a Listing will not cause you to become insolvent;
- the submission of a Listing or consummation of a Transaction is not undertaken with the intent to hinder, delay or defraud anyone, is made in good faith, and is not fraudulent or intended to deceive;
you have not filed a petition in bankruptcy or for protection under any other federal or state debtor relief law during your time of engagement with NFTech, and you will immediately inform NFTech in writing if this status changes; and
- there is no action, suit, proceeding, investigation, litigation or threat thereof that, either in any one instance or in the aggregate, would adversely affect any Transaction, or your ability to perform under this Agreement.
You agree to defend, indemnify and hold harmless NFTech and the Affiliated Entities, and their respective successors and assigns, from and against any and all damages, obligations, losses, liabilities, costs, debt, and expenses (including attorneys' fees) in connection with any claim, action, suit or proceeding related to (a) your use of or access to the Arcade.xyz Platform, including any data, content, User Material or funds that you transmit or receive; (b) your violation of this Agreement, including any of its representations and warranties; (c) your violation, misappropriation or infringement of any third-party right, including any right of privacy or intellectual property rights; (d) your violation of any Applicable Law; (e) your User Material or any material made available via your account, including misleading, false, incomplete or inaccurate information; (f) your alleged fraud, negligence or willful misconduct; (g) any of your Listings or Transactions, or any interaction or dispute between you and any other user of the Arcade.xyz Platform; and/or (h) any other party's access to or use of the Arcade.xyz Platform with your username, password or other appropriate security code.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE PLATFORM AND ANY THIRD PARTY MATERIALS (INCLUDING ALL LISTINGS AND OTHER USER MATERIAL) ARE MADE AVAILABLE ON AN "AS IS," "WHERE IS" AND "WHERE AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) NFTECH DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PLATFORM AND ANY TRANSACTIONS OR THIRD PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH NFTECH AND ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE "AFFILIATED ENTITIES"), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
While we try to maintain the timeliness, integrity and security of the Arcade.xyz Platform, we do not guarantee that the Arcade.xyz Platform is or will remain updated, complete, correct or secure, or that access to the Arcade.xyz Platform will be uninterrupted. The Arcade.xyz Platform may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Arcade.xyz Platform. If you become aware of any such alteration, contact us at [email protected] with a description of such alteration and its location.
- LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) NFTECH WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF USER MATERIAL (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY USER MATERIAL), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, NFTECH WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE PLATFORM OR FROM ANY THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE PLATFORM OR THIRD PARTY MATERIALS IS TO STOP USING THE PLATFORM; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF NFTECH FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE LESSER OF ($100) OR THE FEES PAID TO NFTECH IN CONNECTION WITH THE TRANSACTION(S) GIVING RISE TO THE LIABILITY. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH NFTECH AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
No action, regardless of form, arising out of this Agreement may be brought by you more than one (1) year after you knew or should have known of the event which gave rise to the cause of action.
The term of this Agreement will continue until terminated in accordance with its terms. The following provisions shall survive termination of this Agreement: Section 4 through Section 6 (with respect to any Listings or Transactions initiated before such termination), Section 7 (with respect to any Fees accrued before such termination or during such one (1)-year period set forth in Section 7), and Section 8 through Section 23.
In addition to our other termination rights under this Agreement, we may terminate this Agreement immediately upon written notice to you if you commit any material breach of this Agreement. We may terminate this Agreement if you cease your business operations, or become subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days, or otherwise become generally unable to meet your obligations under this Agreement.
Upon any such termination:
- Your right to access and use the Arcade.xyz Platform will cease immediately;
- You will pay any fees accrued prior to such termination, and for partial months or partial performance, any applicable fees will be pro-rated or otherwise accounted for;
- NFTech may (but is not obligated to) provide you with access to, or the ability to export, all or a portion of your User Material; and
- Any Confidential Information (as defined below) provided in connection with the Agreement shall be promptly destroyed by the receiving party (or, at the disclosing party's written instruction, returned); except that the receiving party may retain any Confidential Information to the extent, and solely for so long as, it is required to do so by law or by such party's retention policies, provided that the receiving party shall continue to treat it as Confidential Information.
NFTech may terminate or suspend your right to access or use all or any portion of the Arcade.xyz Platform at any time, and for any or no reason, including if:
- NFTech believes that you (a) pose a security risk to, or may materially harm, NFTech, the Arcade.xyz Platform, or any user or other third party; (b) may adversely impact the services, systems or content of any other user; or (c) may subject NFTech, or any user or other third party to liability;
- NFTech determines or reasonably suspects that you may have violated this Agreement; or
- NFTech has been notified by a third party that you have violated such third party's terms and conditions in connection with the Arcade.xyz Platform.
Each of you and us may have access to information (in any form) that relates to the others' past, present, and future activities including research, development, business activities, products, services, processes, know-how and technical knowledge, which is identified by the disclosing party as confidential or should reasonably be understood to be confidential ("Confidential Information"). Confidential Information may only be used by the receiving party consistent with the rights and obligations of this Agreement. Our Confidential Information includes a software, Arcade.xyz Platform, and any related documentation made available by NFTech to you. The receiving party agrees to protect the Confidential Information of the disclosing party in the same manner that it protects its own similar confidential information, but in no event using less than a reasonable standard of care. The receiving party must restrict access to such Confidential Information to its personnel (including personnel employed by its affiliates) and subcontractors with a reasonable need to use such Confidential Information (including third-party data analytics vendors) pursuant to the receiving party's rights and obligations under this Agreement, and must ensure that such personnel and subcontractors are bound by substantially similar obligations of confidentiality. Nothing in this Agreement will prohibit or limit either party's use of Confidential Information (a) previously known to it without an obligation of confidentiality; (b) independently developed by or for it without use of Confidential Information; (c) acquired by it from a third party that was not, to the receiving party's knowledge, under an obligation of confidentiality; or (d) that is or becomes publicly available through no breach of this Agreement. In addition, notwithstanding anything in this Agreement to the contrary, we shall have the right to use and disclose for any purpose, on an anonymized or aggregated basis, any data collected in connection with use of the Arcade.xyz Platform, including any Listings or Transactions.
Neither party may use the names, trade names, trademarks, logos, service marks or trade dress of the other party in any manner other than as expressly set forth herein, including in connection with advertising, press release, promotional and marketing materials or activities, or any other public communication or disclosure with respect to this Agreement or the Arcade.xyz Platform, without such party's prior written consent, which may be withheld or granted in its sole discretion. Notwithstanding the foregoing, you grant to NFTech the limited, non-exclusive right to use your name, logos, and trademarks (collectively, "User Marks"): (a) on internal and public materials (including NFTech's website) to identify you as a user of the Arcade.xyz Platform; and (b) as part of authorized press releases (as described below). You agree that NFTech may issue a press release after the effective date of this Agreement that announces the business relationship formed by this Agreement. NFTech agrees that its use of User Marks, including the goodwill and reputation associated therewith, shall be in accordance with your generally applicable trademark guidelines. Unless otherwise agreed in writing, NFTech will cease using the User Marks as provided in this Section within a commercially reasonable period after termination of this Agreement.
- Governing Law; Arbitration.
(a) This Agreement and all rights and obligations hereunder, including matters of construction, validity and performance, and your use of the Arcade.xyz Platform, shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws provisions.
(b) Except as herein specifically stated, any dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement or your use of the Arcade.xyz Platform, and the determination of the scope or applicability of your agreement to arbitrate any such dispute, claim or controversy (an "Arbitrable Dispute") shall be resolved by arbitration in the New York County, State of New York in accordance with JAMS' Comprehensive Arbitration Rules and Procedures (the "JAMS Rules") then in effect, except that the provisions contained in this Agreement shall govern over any conflicting rules which may now or hereafter be contained in the JAMS Rules. Any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction over the subject matter thereof. The arbitrator shall have the authority to grant any equitable and legal remedies that would be available if any judicial proceeding were instituted to resolve an Arbitrable Dispute. The existence of any such arbitration and the terms of the Arbitrable Dispute shall be kept confidential by the parties, except as may be required by Applicable Law.
(c) The arbitrator shall be mutually agreed upon by the parties. If the parties are unable to agree within twenty (20) days following submission of the dispute to JAMS by one of the parties, JAMS will have the authority to select an arbitrator in accordance with the JAMS Rules.
(d) No discovery other than an exchange of relevant documents may occur in any arbitration commenced under the provisions of this Agreement. The parties agree to act in good faith to promptly exchange relevant documents. The arbitrator shall be instructed to hold an up to eight (8) hour, one day hearing regarding the disputed matter within sixty (60) days after its designation and to render an award no later than ten (10) days after the conclusion of such hearing, in each case unless otherwise mutually agreed in writing by the parties.
(e) The final decision of arbitrator shall (i) identify the prevailing party and state the amount of the award (the "Award Amount"), if any; (ii) include a reasonably detailed written explanation of the decision; (iii) be furnished to the parties in writing; (iv) shall constitute a conclusive determination of the issue(s) in question, and shall be binding upon the Parties; (v) not be contested by the parties; and (vi) remain confidential unless otherwise agreed in writing by the parties, and an order with respect thereto may be entered in any court of competent jurisdiction.
(f) The arbitrator will not have the power to alter, amend or otherwise affect the terms of these arbitration provisions or any other provisions contained in this Section or elsewhere in this Agreement.
You may not assign this Agreement or delegate, in each case, any of your rights or obligations hereunder without the prior written consent of NFTech. Any attempted assignment in violation of this Section 20 shall be void. NFTech may assign this Agreement or delegate any of its rights or obligations hereunder without your consent. Subject to the foregoing limitations, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
- Copyright Infringement Claims.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that material available on the Arcade.xyz Platform infringes your copyright, you (or your agent) may send to NFTech a written notice by mail or e-mail, requesting that we remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to NFTech a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Robert Masiello as follows: By mail to 1390 Market Street Suite 200 San Francisco, CA 94102; or by e-mail to [email protected]
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
- Notices; Electronic Consent.
You consent to electronic provision of all notices, communications and disclosures ("Communications") from us, including those required by Applicable Laws. You agree that your electronic consent will have the same legal effect as a physical signature. We may send Communications to you to the email address or phone numbers we have on file for you. You agree to keep all your contact information current. Communications are considered received 24 hours after we deliver them to you. You may withdraw your consent to receive electronic Communications at any time by sending us a written request to [email protected] Due to the nature of the Arcade.xyz Platform, you will not be able to continue to use and/or access the Arcade.xyz Platform without agreeing to electronic delivery of Communications, and if you elect to withdraw your consent to receive Communications electronically you will no longer have access to or be able to use the Arcade.xyz Platform.
All notices, demands and other communications you provide to us must be in writing and must be sent by electronic mail to the following address: [email protected] (or to such other address as [email protected] may designate to you from time to time).
Nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties, or be deemed to authorize either party to incur any liabilities or obligations on behalf of, or in the name of, the other party.
This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and NFTech relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and NFTech relating to such subject matter.
NFTech shall not be liable for any delay or failure to perform its obligations hereunder resulting from any cause beyond NFTech's reasonable control that makes performance impossible, including: fires; explosions; pandemics, epidemics or other spread of disease; floods; strikes; work stoppages or slowdowns or other industrial disputes; accidents; riots or civil disturbances; acts of governmental authorities; industry-wide material shortages, power failures, or communication line interruptions; disruption or damage to, or failure of, the Internet or other computer networks, third party information technology systems or services beyond NFTech's reasonable control. You acknowledge that NFTech does not and cannot control the flow of data through the Internet.
If the software in connection with the Arcade.xyz Platform is construed as "commercial computer software", as that term is defined in 48 CFR 2.101, all U.S. government end users acquiring access to such software may only do so with the rights set forth in this Agreement, in accordance with 48 CFR 12.212(b) and/ or 48 CFR 227.7202-1(a) and 48 CFR 227.7202-4, as applicable.
We hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that we do not endorse any of the products or services listed on such site.
You may not, for the duration of this Agreement and for a period of twelve (12) months thereafter, directly or indirectly solicit for employment, nor offer employment to, nor enter into any contract for services with any employee of ours, whose duties and responsibilities are directly or indirectly connected with the Arcade.xyz Platform. General solicitation through newspaper advertising, job fairs and similar means, or employment or offers resulting from such solicitation, shall not be deemed to be a violation of this provision.
No delay, neglect or forbearance on the part of either party in enforcing any term of this Agreement shall be deemed to be a waiver. All waivers must be in writing and must be signed by the party against which it is sought to be enforced to be effective.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof, and it is the intent and agreement of the parties that this Agreement will be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting another provision that is legal and enforceable and that achieves the same objective.
Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term "including" or variations thereof in this Agreement shall be construed as if followed by the phrase "without limitation."
This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement, except that the Affiliated Entities are express third-party beneficiaries of this Agreement.
Arcade.xyz Platform © 2022 NFTech unless otherwise noted. All rights reserved.
Updated 3 months ago