Please read this Interface Agreement (this "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 the Site or App to access the Protocol (each 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 the website located at arcade.xyz (the “Site”) and corresponding application (the “App”) offered by us. To make this Agreement easier to read, the Site, App, and our services are collectively called the “Interface.” The Interface provides a graphical, browser-based, and easily comprehensible means for users to view blockchain transactions and format their own blockchain-compatible messages to interact with the Arcade Protocol (the “Protocol”). The Protocol is autonomous “smart contract” software executed in a distributed manner by blockchain validators enabling its users to coordinate and self- settle peer-to-peer financing against their non-fungible tokens (“NFTs”). We do not own or control the Protocol. We do not take ownership or control of your assets when you use our Interface to interact with the Protocol. You do not need to use the Interface to interact with the Protocol. YOU ACKNOWLEDGE AND AGREE THAT NEITHER NFTECH NOR THE INTERFACE IS A LENDER OR BORROWER OF ANY LOAN NOR PARTY TO ANY TRANSACTION YOU MAY ENTER INTO USING THE PROTOCOL.
If you are an individual accessing or using the Interface 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 Interface and to any such Organization.
NOTICE ON PROHIBITED USE – RESTRICTED PERSONS: THE INTERFACE AND ANY RELATED SERVICES ARE NOT OFFERED TO AND MAY NOT BE USED BY:
PERSONS OR ENTITIES WHO RESIDE IN, ARE CITIZENS OF, ARE LOCATED IN, ARE INCORPORA TED IN, OR HA VE A REGISTERED OFFICE IN ANY RESTRICTED TERRITORY (EACH SUCH PERSON OR ENTITY FROM A RESTRICTED TERRITORY, A “RESTRICTED PERSON”). For the purposes of these Terms, “Restricted Territory” means Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic and Luhansk People’s Republic regions of Ukraine or any other country to which the United States embargoes goods or imposes similar sanctions.
WE DO NOT MAKE EXCEPTIONS. THEREFORE, IF YOU ARE A RESTRICTED PERSON, THEN DO NOT ATTEMPT TO USE THE INTERFACE OR ANY RELATED SERVICES. USE OF A VIRTUAL PRIVATE NETWORK (“VPN”) OR ANY OTHER SIMILAR MEANS INTENDED TO CIRCUMVENT THE RESTRICTIONS SET FORTH HEREIN IS PROHIBITED.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 17 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 Interface. 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 Interface 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 Interface; (b) charge, modify or waive any fees required to use the Interface; or (c) offer opportunities to some or all users.
You may not use the Interface 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 Interface to anyone for any reason at our discretion.
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 Interface, whether or not authorized by you (including any acts or omissions by any users for whom you have submitted a user authorization form). It is your responsibility to ascertain and obey all Applicable Laws regarding your use of the Protocol.
You are responsible for obtaining and maintaining all hardware, software (and related licenses) and communications equipment necessary to access and use the Interface and for paying all third- party access charges (e.g., ISP, telecommunications, etc.) incurred while using the Interface. 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 Interface.
In connection with the Interface, you must not:
- Use the Arcade.xyz Platform for any purpose or in connection with any activity that is fraudulent, illegal or otherwise tortious or unlawful;
- Post, transmit or otherwise make available through or in connection with the Interface 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 Interface;
- 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 Interface or the servers or networks used to make the Interface available, including by hacking or defacing any portion of the Interface; or violate any requirement, procedure or policy of such servers or networks;
- Perform testing of the Interface, or the systems or networks used to provide the Interface, 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 Interface, or the systems or networks used to provide the Interface;
- Restrict or inhibit any other person from using the Interface;
- Harvest or collect information about users of the Interface;
- Interfere with any other user's property on the Interface;
- Remove any copyright, trademark or other proprietary rights notice from the Interface or any NFTech Material (defined in Section 6 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 Interface, 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 Interface, or any NFTech Material, except where such restriction is expressly prohibited by Applicable Law;
- Frame or mirror any portion of the Interface, or otherwise incorporate any portion of the Interface 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 Interface;
- Access or use the Interface in a way intended to avoid incurring fees or exceeding usage limits or quotas; 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.
The Interface may help you view or submit Protocol messages to coordinate requests, proposals, terms, descriptions and other information from other users of the Protocol in connection with potential NFTs or loans ("Transactions").
TRANSACTIONS AND ANY ASSOCIA TED COMMUNICA TIONS ARE MADE AVAILABLE BY YOU AND BY OTHER USERS OF THE PROTOCOL, AND NOT BY NFTECH. WE MAKE NO REPRESENTATIONS AS TO THE COMPLETENESS, ACCURACY, RELIABILITY, VALIDITY OR TIMELINESS OF TRANSACTIONS 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) TRANSACTIONS BY YOU OR OTHER USERS; (C) ANY THIRD-PARTY SERVICES OR CONTENT, INCLUDING THE PROTOCOL; (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.
The Protocol and other third-party DeFi functionalities that are accessible via the Interface may charge fees (collectively, the "Fees") as communicated to you from time to time, except that if there is a separate written agreement setting forth such fees, such agreement will control, and NFTech or the relevant third-party service provider 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 of Fees, if any, that are charged for the Interface, through the Interface, via email, or through other reasonable means, and your continued use of the Interface indicates your acceptance of such modifications, changes, supplements or additions to the Fees. NFTech reserves the right to require payment in advance.
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 Interface, 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 Interface (including, at the request of the relevant third-party service providers, your buying and selling and other Transactions on the Protocol or other third-party DeFi functionalities) for the purpose of verifying your compliance with this Agreement. If such audit reveals that you have improperly used the Interface or the third- party DeFi functionalities accessible through the Interface, 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 Interface and/or this Agreement, and/or invoice you for such unauthorized use based upon the standard fees in effect at the time of the audit, which you shall promptly pay to NFTech or the relevant third- party service provider, as applicable. 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.
Except for your User Material (as defined below), the Interface 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 Interface during the term of this Agreement, for your internal use only, and only to the extent permitted by the features and functionalities of the Interface.
You may choose to, or we may invite you to, submit comments or ideas relating to NFTech or the Interface, including about how to improve the Interface 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.
The Interface 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 Transactions (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 Interface, you agree to allow others to view, edit, share, and/or interact with your User Material, in accordance with your settings on the Interface 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 Interface 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 Interface 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 Interface, or analyze your access to or use of the Interface, for any or no reason.
The Interface 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 the Protocol and other DeFi functionalities that are accessible through the Interface, as well as Transactions 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 Interface at any time. In addition, the availability of any Third Party Materials through the Interface 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 Interface, 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).
Any use of the Interface is at your own risk, and you must comply with all Applicable Laws in doing so. We may limit the Interface'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 Interface or the Protocol and any third-party DeFi functionalities accessible through the Interface, in our sole discretion, unduly burdensome or unlawful or if a regulatory authority directs NFTech to suspend or cease operating the Interface, NFTech may cease offering the Interface and terminate this Agreement upon notice to you, and without further obligation to you.
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 Transactions, 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
- 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 use the Protocol;
- you are able to, and will, perform each and every covenant in this Agreement; and
- the submission 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 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 Interface, 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 Transactions, or any interaction or dispute between you and any other user of the Interface; (h) any other party's access to or use of the Interface with your digital wallet or other credentials; and (i) your use of any Third Party Materials, including the Protocol and any other third-party DeFi functionalities.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE PLATFORM AND ANY THIRD PARTY MATERIALS (INCLUDING THE PROTOCOL AND OTHER THIRD-PARTY DEFI FUNCTIONALITIES, ALL TRANSACTIONS AND OTHER USER MATERIAL) ARE MADE AVAILABLE ON AN "AS IS," "WHERE IS" AND "WHERE A V AILABLE" BASIS, WITHOUT ANY W ARRANTIES 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.
NFTECH WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE INTERFACE, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CRYPTOCURRENCY WALLETS OR CORRUPT FILES; (IV) UNAUTHORIZED ACCESS TO THE INTERFACE; OR (V) ANY THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST ANY BLOCKCHAIN NETWORK UNDERLYING THE SERVICES.
By accessing and using the Interface, you represent that you understand the inherent risks associated with using cryptographic and blockchain-based systems, and that you have a working knowledge of the usage and intricacies of cryptoassets and other digital assets such as bitcoin (BTC), ether (ETH), USD Coin (USDC) and other digital tokens such as those following the Ethereum Token Standard (ERC-20). You further understand that the markets for these cryptoassets are highly volatile due to factors including (but not limited to) adoption, speculation, technology, security, and regulation. You acknowledge that the cost and speed of transacting with cryptographic and blockchain-based systems are variable and may increase at any time. You further acknowledge the risk that your cryptoassets may lose some or all of their value while they are supplied to or from the Interface. You further acknowledge that we are not responsible for any of these variables or risks and cannot be held liable for any resulting losses that you experience while accessing Interface. Accordingly, you understand and agree to assume full responsibility for all of the risks of accessing, using and interacting with the Interface.
While we try to maintain the timeliness, integrity and security of the Interface, we do not guarantee that the Interface is or will remain updated, complete, correct or secure, or that access to the Interface will be uninterrupted. The Interface may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Interface. If you become aware of any such alteration, contact us at [email protected] with a description of such alteration and its location.
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 (with respect to any Transactions initiated before such termination), Section 5 (with respect to any Fees accrued before such termination), and Section 6 through Section 21.
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 Interface 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 this 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 Interface 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 Interface, 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 Interface.
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, Interface, 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 Interface, including any Transactions.
You may not use the names, trade names, trademarks, logos, service marks or trade dress of NFTech 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 Interface, without our prior written consent, which may be withheld or granted in our 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 Interface; and (b) as part of authorized press releases (as described below). 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.
(a) This Agreement and all rights and obligations hereunder, including matters of construction, validity and performance, and your use of the Interface, 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 Interface, 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 18 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.
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 Interface 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 Non-fungible Technologies, Inc. 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.
Communications at any time by sending us a written request to [email protected]. Due to the nature of the Interface, you will not be able to continue to use and/or access the Interface 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 Interface.
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).
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 Interface, you will not be able to continue to use and/or access the Interface 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 Interface.
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 Interface 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.
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.
Interface © 2023 NFTech unless otherwise noted. All rights reserved.
Updated 4 months ago