THIS AGREEMENT (THE “AGREEMENT”) IS MADE BETWEEN CURVEGRID INC.
(“NFTEAPOT”, “WE”, “US”, OR “OUR”), AND YOU (THE “USER”). EACH A “PARTY” AND
TOGETHER THE “PARTIES”.
BY ACCEPTING THESE TERMS OR OTHERWISE PROCEEDING TO USE THE SERVICES MADE AVAILABLE VIA CURVEGRID.COM, MULTIBAAS.COM, MULTIBAAS.APP, NFTEAPOT.XYZ, OR THE SHOPIFY APP STORE AT SHOPIFY.COM (TOGETHER, THE “WEBSITE”) YOU ARE AGREEING TO THE FOLLOWING TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT GOVERNING YOUR USE OF THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT PROCEED AND MAY NOT USE THE SERVICE.PLEASE NOTE THAT WE RESERVERS THE RIGHT TO CHANGE OR MODIFY THE AGREEMENT AT ANY TIME AND IN OUR SOLE DISCRETAION. YOU AGREE THAT BY ACCESSIGN OR USING THE WEBSITE AND/OR THE SERVICES FOLLOWING ANY CHANGE TO THE AGREEMENT, YOU AGREE TO THE REVISED AGREEMENT AND ALL OF THE TERMS INCORPORATED THEREIN BY REFERENCE.
1. Definitions and construction
In this Agreement the following terms shall apply (save where the context otherwise requires):
“Acceptable Use Restrictions”
has the meaning set out in clause 2.
means providing certain cryptocurrency, NFTs, or other digital assets to a Wallet.
means each and any Subsidiary or Holding Company of a party and each and any Subsidiary of a Holding Company of a party.
has the meaning set out in clause 3.
means an aspect of the Services which is labelled as being offered in a ‘beta’ state.
means a decentralized computer and data storage system that operates across a computer network and is not reliant on a central authority, examples of which include Ethereum, BNB Chain, Polygon, Algorand, Avalanche, Flow, Tezos, Optimism, and Arbitrum.
“CID (Content Identifier)”
means a unique identifier of a piece of data, typically generated by processing the data through a one-way cryptographic hashing algorithm.
“Cloud Storage Charges”
mean the costs to store media and/or metadata on Public Cloud Storage which is incurred on an ongoing basis.
is a digital currency designed to work as a medium of exchange on a blockchain.
means the Bribery Act 2010 (UK), the Foreign Corrupt Practices Act 1977(USA) and all replacement and modifying legislation and regulations pertaining thereto.
means any data or content which is uploaded to, featured in, or generated by an Application.
means an individual User who accesses to and uses the Merchant’s store to purchase and/or claim an NFT.
“DApp (decentralized application)”
means an application that interfaces with a blockchain as well as with off-blockchain systems such as a web browser.
shall have the meaning of ‘controller’ set out in Article 4(7) of the GDPR.
shall have the meaning of ‘processor’ set out in Article 4(8) of the GDPR.
“Data Protection Legislation”
means the GDPR and, for such time as it is in force in Japan, the Act on the Protection of Personal Information 2003, and all related legislation which may supplement, amend, implement or replace those acts and which relates to the protection of individual’s rights in their personal data and the protection of their privacy.
means a period during which there is total loss of the Services.
means an NFT which may have its properties adjusted and has not yet been uploaded to a blockchain.
means a period of one month commencing at the end of the Initial Period or at the end of the previous Extension Period.
means the fee payable in respect of a particular service, as specified either (i) in the pricing table set out on the Website as it may be amended from time to time, or (ii) as specified in a Pricing Schedule if applicable.
means blockchain cryptocurrency transaction fees incurred when writing data to a blockchain.
means Regulation (EU) 2016/679 and/or such associated legislation as may give effect to its terms.
“HSM (hardware security module)”
means hardware or software which securely generates and stores wallets and provides an application programming interface (API) to sign transactions
means an instance where the data or Smart Contracts cannot be changed or deleted.
“Intellectual Property Rights”
means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
means a digital image, video, audio, 3D, data, or other form of digital data which can be displayed by a device.
means a person or an entity who opens and retains a Shopify store.
means a piece of data which is signed/authorized by a wallet, but is not formatted as a blockchain transaction.
means data which provides information about other data.
means to create an NTF.
“NFT (Non-fungible token)”
means a non-interchangeable unit of data stored on a blockchain and/or Public Cloud Storage which is often implemented via a Smart Contract and can be sold and traded, and includes some or all of media, metadata, and a CID.
means an instance of Downtime.
has the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other.
“Public Cloud Storage”
means a cloud-based storage which is publicly accessible to anyone with access to the internet and knowledge of the URL of a particular piece of data, and which may be decentralized and operate without a central authority, such as IPES (Interplanetary File System) and Arweave, or be centralized, such as AWS S3 or Cloudinary.
means an NFT which is Immutable and has had its Metadata and/or Media uploaded to a blockchain and/or Public Cloud Storage.
means a bespoke schedule of pricing which may be agreed between Provider and User which specifies alternative or additional Fees, and which takes precedence over the Fees specified on the Website to the extent that the two documents conflict.
“Processing” and “Process”
have the meaning set out in Article 4(2) of the GDPR.
the person appointed by a party to represent its interests hereunder in respect of the management and provision of the Services.
means a period during which there is partial loss of the Services.
means, where applicable, the levels of performance to which the Services are to be provided to the User by us.
means the NFTeapot and its ancillary services provided by us to the User under the terms of this Agreement.
means the e-commerce platform operated by Shopify, Inc.
means a third party application which integrates with Shopify and provides ancillary services.
means a computer program which is deployed to and runs on a blockchain.
means consulting, customisation and/or support services provided to a User by our personnel (remotely or otherwise).
“System Management Regulations”
means regulations introduced by us from time to time for the better management of the Services and which may include (but are not limited to):
(i) Defining minimum specifications for equipment used by the User to interface with the Services (including, but not limited to, routers, firewalls and PCs);
(ii) regulations to ensure that the network through which the Services are provided is not overloaded and that the security and integrity of the network is maintained and including regulations which arise from the need to comply with regulations of any data centre facility engaged by us in connection with the Services; and
(iii) regulations to ensure that any database or other applications which form part of the Services are used to the best effect and within their capacities.
means a discrete unit of processing that occurs on a blockchain to take some input, modify the blockchain state, and generate output, and which may cost Gas.
means either Merchant or Customer.
means all data processed by us or otherwise provided to us pursuant hereto including, but not limited to, any Personal Data.
means such hardware and software as may be specified on the Website which the User is required to have in use in order to use and receive the Services to be provided in accordance with this Agreement.
means a cryptographic public/private key pair which is held by an individual user or entity and can be used to store value or direct transactions on a blockchain, and which may be stored and secured via a browser extension such as MetaMask, a hardware wallet such as Ledger, or via other software, electronic, or manual means. A Wallet connected to a compatible web browser is required to interact with DApp.
The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.
Unless the context otherwise so requires:
references to us and the User include their permitted successors and assigns;
references to statutory provisions include those statutory provisions as amended or re-enacted;
references to any gender include all genders;
words in the singular include the plural and in the plural include the singular.
In the event of any conflict between the terms and conditions of this Agreement and any provision of any schedule, the terms and conditions of this Agreement shall prevail.
Holding company shall be construed as a company that owns directly or indirectly more than 50% of the issued share capital in a party and exercises effective control over such party.
Subsidiary shall be construed as a company in which more than 50% of the issued share capital is owned directly or indirectly by a party and over which it exercises effective control.
2. Provision of Services and Licences
About NFTeapot - NFTeapot is an application that enables a Merchant to mint and sell an NFT, and facilitates transactions between such Merchant and Customer, but is not a party to any agreement between Merchant and Customer or between any Users. NFTeapot is not a wallet provider, exchange, broker, financial institution, or creditor. We do not have custody or control over the NFTs, media and descriptive data (“Metadata”) that is uploaded by Merchant, or blockchains you are interacting with.
We agree to supply the Services and to licence NFTeapot on a non-exclusive basis pursuant to the terms and conditions of this Agreement. The use by Merchant is subject to the following conditions:
Non-Exclusivity: the licence is non-exclusive and Provider shall remain entitled to grant similar or identical licences to use the Software to third parties without restriction;
Non-Transferability: save where otherwise expressly stated, the licence is non-transferable or sub-licensable, and the Customer shall not permit or purport to transfer the licence to any third party (nor offer the Software on a bureau or ‘passthrough’ basis) without first obtaining explicit written permission from Provider to do so;
Specific Purpose: the Software may only be used by the Customer in order to produce hosted applications within Deployments, save for where a subscription Tier specifically permits the use of the Software for an alternative or additional purpose;
Merchant accepts that it shall in no circumstances be permitted to:
reproduce, edit, create derivative works of, sell or in any way commercially exploit any part or aspect of the Application in contravention of the purpose set out in clause 2.2.3;
outsource the Services or NFTeapot provided under this Agreement to third parties;
attempt to decompile the Application (including any underlying Application or any part of it) that is used to provide the Services; and
to observe, study or test the functioning of the Application (including any underlying Application or any part of it) that is used to provide the Services.
Customers may not activate or operate more than one Free Account at any time. Customer undertakes that it shall not attempt to subvert or circumvent the terms of this clause by collaborating with any other entity to use multiple Free Accounts in tandem, and accepts that Provider shall be entitled to suspend or terminate any Deployment Account which it finds in violation.
3. Service Functionality
The functioning of Applications is dependent upon Merchant’s choices and we make no warranty that any individual Application installed by Merchant will function in any particular way or be fit for any particular purpose. Merchant is solely responsible for its own configurations.
User shall not configure any Application in any way that causes (intentionally or otherwise) an undue or disproportionate burden on the system resources which underpin the Application. User accepts that Provider shall be entitled to enforce the terms of this clause 3.3 by way of introducing ‘throttling’ or similar access limitation technologies at any time.
Where User configures any Application, in any way that causes disruption, loss or damage to other Merchant or User, then such Merchant or User shall be solely liable for the same. Merchant or User releases us from any associated liability and recognises that we shall not, in any circumstances, be liable for the results of other Merchant’s or Use’s use of the Services.
4. Acceptable Use of the Services
As a condition of being granted access to the Services, User undertakes:
not to transmit any material, that is defamatory, unlawful, offensive or otherwise objectionable in relation to your use of the Services;
not use the Application or the Services in an unlawful manner, for any unlawful purpose, or in any manner inconsistent with the terms of this Agreement, or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into any Application or third-party service or operating system;
not infringe our Intellectual Property Rights or those of any third party in relation to its use of the Services;
not use the Services in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other Users; and
not to collect, extract or harvest any information or data from the Services (or our systems more generally) or attempt to decipher any transmissions to or from the servers running any Service.
Together the conditions of use set out in this Clause 4 are referred to as the “Acceptable Use Restrictions”.
5. Content and Data
User shall retain sole liability for any Content and accepts that it is responsible for ensuring the suitability, accuracy and maintenance of such Content.
In particular, User shall be responsible for ensuring that its Content complies with:
5.2.1 the Acceptable Use Restrictions;
5.2.2 all applicable rights of third parties; and
5.2.3 all applicable laws and regulations;
and shall indemnify and hold harmless us against all loss damage or claims which we may suffer as a result of User’s use, processing or storage of Content in any fashion that infringes the terms of this clause 5.2.
Without prejudice to its other rights under this Agreement, we shall be entitled to delete, suspend, or otherwise restrict any Content which it considers to be in breach of the terms of this Agreement.
We put User on notice that it is entitled to, and shall, share or make available Content where it is required to do so by law (such as in response to disclosure orders made by a court of law, or search warrants served by law enforcement agencies with appropriate jurisdiction). We may not give User notice of such events and shall have no liability to User as a result of its compliance with such legal obligations.
6. Unlawful Content Notifications
If you consider that any content on the Website or the Services infringes or violates your copyright (or other intellectual property rights), or is otherwise unlawful, please contact us at email@example.com.
Please note that there may be legal consequences for sending false, frivolous or vexatious requests for the removal or takedown of content. Please consider this carefully (taking into account exceptions and lawful licensed usage of content) before submitting any complaint.
Making repeated unfounded requests for the removal of content may be considered to be harassment and, in such cases, will result in us taking steps to suspend or terminate your use of the Services.
User may use the Services as long as User is a Shopify Merchant or its Customer and we will bear the cost of Cloud Storage Charges of media and Metadata as long as Merchant is using NFTeapot. Once Merchant ceases to use NFTeapot, we may cease to host media and/or Metadata at any time at our sole discretion. Merchant owns responsibilities to take steps to re-host or otherwise make available Metadata or Media.
We shall be entitled to charge Merchant certain percentage of the sale prices of each NFT as a blockchain transaction fee, cloud storage fee or infrastructure fee. We may also choose to charge Merchants fee on an ongoing basis for Cloud Storage and/or infrastructure at our sole discretion, but we are not be held liable for the availability of Metadata or media on Public Cloud Storage or infrastructure for any reason.
We shall be entitled to charge User interest in respect of the late payment of any sums due under this Agreement if applicable (as well after as before judgement) on a daily basis at the rate of 8 per cent per annum or at the maximum rate permitted by statute from the due date therefore until payment.
We shall be entitled to increase the Fee from time to time by posting details of the updated Fee on the relevant part of the Website. Such increases shall take effect immediately and shall be payable by User.
All sums due under this Agreement are expressed exclusive of VAT (and/or any other applicable sales taxes) but will be subject to VAT (and any other relevant sales taxes) where applicable which will be payable by User.
8. Outages, Service Interruptions and Changes to Services
Outages or Service Interruptions may be made by us when in its reasonable opinion they are necessary to facilitate improvements to, or maintenance of the Services. We will use reasonable endeavours to minimise the duration of such Outages or Service Interruptions that it deems necessary.
If Outages or Service Interruptions are required pursuant to Clause 8.1, we will endeavour to schedule them so as to minimise impact on the Services and to notify the User as far in advance as is practicable of the anticipated commencement time and estimated duration of the relevant Outage or Service Interruption.
User requested interruptions (including, but not limited to, request for an application server to be re-booted) will be fulfilled at our discretion but will not be considered a break in service, and will not be a factor when considering the Service Levels for any purpose or give rise to any liability on the part of Provider.
Save for where an applicable Service Level specifically provides otherwise the occurrence of Outages or Service Interruptions shall not constitute breaches of this Agreement.
We warrant to and undertake with the User that:
it will use its reasonable efforts to provide the Services and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
it has full right power and authority to provide the Services to the User in accordance with the terms of this Agreement;
it has all requisite registrations under Data Protection Legislation and will maintain such registrations throughout your use of the Services; and
it will at all times comply with the Data Protection Legislation and with the Conduct Legislation.
For the avoidance of doubt, we make no warranty that use of the Service will guarantee or enable compliance with any particular laws, regulations or codes of conduct. The User’s compliance with any legal requirements to which it may be subject is entirely its own responsibility and we shall have no liability or responsibility in respect of the same.
We make no representation or warranty that any information provided by or contained within the Services or the Application shall be accurate, complete or up-to-date and the User shall be responsible for verifying any such information on which it may choose to rely.
Except for the express warranties set forth in this Clause 9, the Services are provided on an “as is” basis, and the User’s use of the Services is at its own risk. We do not make, and hereby disclaim, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. We do not warrant that the Services will be uninterrupted, error-free, or completely secure.
We do not and cannot control the flow of data to or from its network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although we will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, we cannot guarantee that such events will not occur. Accordingly, we disclaim any and all liability resulting from or related to such events.
We make no representation or warranty regarding whether our source code or computer systems have been or will be reviewed or audited by any third party.
10. User Obligations and Warranties
In the event that the User is in breach of any of its obligations under this Agreement, then:
We cannot be held responsible should the Services fail to perform and comply with the Service Levels as a result (directly or indirectly) of such User breach;
We shall be entitled to charge the User for staff time engaged on rectifying any resulting problems at ours then current standard charging rates; and
We may without any liability terminate or suspend the Services without prejudice to any other pre-existing rights and obligations of either party.
The User represents, warrants and undertakes that:
it has and shall have the legal right and authority to use and have used the User Equipment and Content as contemplated under this Agreement;
it will use the Services only for lawful purposes and in accordance with this Agreement;
it will at all times comply with Data Protection Legislation;
any Personal Data will only be provided to us in accordance with Data Protection Legislation;
it will be solely responsible for the accuracy and submission of User Data when using the Services and we will not be liable for failing to ensure the accuracy of any User Data; and
any software, data, equipment or other materials provided by the User to us or employed by the User in its use of or receipt of the Services shall not infringe any Intellectual Property Rights, privacy or Personal Data interests of any third party and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any country or state which may have jurisdiction over such activity.
In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law, we will have the right to suspend immediately any related Services if deemed reasonably necessary by us to protect our or other User’s proper interests. If practicable and depending on the nature of the breach, we may (in its absolute discretion) give the User an opportunity to cure such breach. In such case once the User has cured the breach, we will promptly restore the Services.
User undertakes to indemnify and hold harmless us against any loss or damage which we may suffer as a result of User’s use of the Services, including for the avoidance of doubt any infringement, or alleged infringement, by User of any third party’s Intellectual Property Rights which arises as a result of User’s use of the Services.
11. Data Protection
The parties to this Agreement recognise that the User may configure an Application in such a way as to cause a transfer of Personal Data from User to us. In such an event we shall be a Data Processor in respect of that Personal Data.
Save for as specified in clause 11.3, we make no warranty that it will store or process any particular data in any particular jurisdiction.
The Parties recognise the terms of the ‘Commission Implementing Decision (EU) 2019/419 of 23 January 2019 pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council on the adequate protection of personal data by Japan under the Act on the Protection of Personal Information’ (the “EU Japan Adequacy Decision”). Provider undertakes that it shall comply with the terms of the supplementary rules specified by the EU Japan Adequacy Decision.
Where a transfer of data of the type specified in clause 11.1 occurs we warrant that in relation to the Personal Data in respect of which it is a Data Processor that:
we will process that Personal Data only as instructed by us which, for the avoidance of doubt, shall mean limiting the processing of the relevant data to the processing specified by the User’s configuration of its Applications;
having regard to the reasonably available state of the art of technological development, the nature of the Processing in question, the cost of implementation, and the material risk to the rights of affected Data Subjects, we will take appropriate technical and organisational measures to secure relevant Personal Data against the unauthorised or unlawful Processing and against accidental loss or destruction;
we will not transfer Personal Data outside of the EEA and/or any territory in respect of which there is a valid and subsisting Adequacy Decision without ensuring that appropriate safeguards are in place and that any transfer is lawful under all applicable Data Protection Legislation;
we will assist the Data Controller, insofar as reasonably possible, in responding to any requests made by any relevant Data Subject which concern the exercise of that Data Subject’s rights under the GDPR, subject to the Data Controller reimbursing it for the cost of the same;
we will notify the Data Controller, insofar as reasonably possible, of any relevant requests for the disclosure of Personal Data which may be made to it and which it considers that it is legally obliged to respond to, subject to the Data Controller reimbursing it for the cost of the same;
we shall report to the Data Controller any suspected data breach concerning the Personal Data which comes to its attention and shall provide reasonable assistance to the Data Controller in informing the relevant regulator and/or affected Data Subjects, subject to the Data Controller reimbursing it for the cost of the same;
we shall, on request, take reasonable steps to demonstrate to the Data Controller, to the extent that is reasonable given the nature of the Processing in question, that it complies with Data Protection Legislation; and
at the written instruction of the Data Controller securely delete or return Personal Data and copies thereof to the Data Controller on termination of this Agreement unless prohibited from doing so by an act of law which requires otherwise.
User recognises that we use various third-party service providers in order to deliver the Services. We warrant that, where those third-party service providers are engaged to provide any service which involves the processing of Personal Data, that those third parties have provided sufficient guarantees to implement appropriate technical and organisational measures to ensure the compliant processing of that data.
The Parties agree that we may discharge its obligations pursuant to this clause 11 by way of making available to the User automated functionality that enables the User to receive the benefit of those obligations without direct communication with us.
A fundamental part of ensuring security is access control. User acknowledges that the Services contain functionality which enable it to make some or all of its deployments publicly viewable and/or accessible. User is solely responsible for any choice it may make to permit public access to one or more of its deployments.
Each party recognises that it is impossible to maintain flawless security but, taking into account the relevant risks and the state of the art, we shall take all reasonable steps to:
prevent security breaches in its own servers' interaction with the User;
secure User’s data against unauthorised third-party intrusion and access; and
prevent any security breaches occurring in relation to any interaction between the Application and third-party resources on which its operation relies.
The User is responsible for maintaining the security of its system, server or device. The User must ensure the continued confidentiality of any passwords which are required to access the Application and the Services and is solely responsible for any damage caused by any such unauthorised access which arises from its failure to do so.
The User shall notify us immediately if it suspects or becomes aware of any breach of security which occurs in relation to the Application.
13. Limitation of Liability
Except as expressly stated in Clause 13.2:
We shall not be liable for any indirect or consequential loss or damage suffered by the User, irrespective of how such loss or damage may arise and no matter which theory of liability gives rise to any cause of action by User.
We shall have no liability for any losses or damages which may be suffered by the User (or any person claiming under or through the User), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
126.96.36.199 special damage, even though we were aware of the circumstances in which such special damage could arise;
188.8.131.52 loss of profits;
184.108.40.206 loss of anticipated savings;
220.127.116.11 loss of business opportunity;
18.104.22.168 loss of goodwill; or;
22.214.171.124 loss of or damage to data.
to the fullest extent permitted by law, and to the fullest extent that not excluded by Clauses 13.1.2, 13.3, 13.4, 13.5 or otherwise, our total aggregate liability, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Fee actually received by us from such User prior to the first event which gave rise to the User’s right to bring a claim against us.
the User agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) we shall have no liability otherwise than pursuant to the express terms of this Agreement.
The exclusions in Clause 13.1 shall apply to the fullest extent permissible at law but we do not exclude liability for:
death or personal injury caused by our negligence, its officers, employees, contractors or agents;
fraud or fraudulent misrepresentation; or
any other liability which cannot be excluded by law.
We shall not be liable for any loss or damage of whatsoever nature suffered by the User arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the User or arising from any cause beyond our reasonable control.
The User accepts that we are in no way liable for any virus or other contaminants which enter the User's email system or computer network via email or for any loss, damage, interruption to the Services or Outages caused by the failure of the User Equipment.
We shall not be liable for any interruptions to the Services or Outages arising directly or indirectly from: -
interruptions to the flow of data to or from the Internet;
User’s inability to use the Services or failure to use the Services correctly;
any third party’s use of the Services;
changes to the Application, or the Services;
changes, updates or repairs to the network or the Application subject to us striving to minimise the interruptions / Outages that may be caused by such change;
the effects of the failure or interruption of services provided by third parties;
any of the factors set out in Clause 18;
any actions or omissions of the User (including, without limitation, breach of the User's obligations set out in this Agreement) or any third parties;
problems with the User Equipment, any other equipment owned by the User and/or any third-party equipment; or
interruptions to the Services requested by the User.
The User agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the User will effect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 13.
Notwithstanding the foregoing and except as expressly stated in Clause 13.2, in no event shall we be liable to the User for any claims or costs sustained by the User in relation to the use of the Services, for consequential, special, direct or indirect losses or damages sustained by it or any third parties, irrespective of whether under contract, tort or otherwise (including, without limitation, loss of profits, loss of revenues, loss of Users or damage to reputation or goodwill).
The price and liquidity of blockchain assets, including the value of an NFTs are extremely volatile and subjective, and may be subject to large fluctuations in the price of cryptocurrency, which could materially and adversely affect NFT prices. You acknowledge that you fully understand this subjectivity and volatility and that you may lose money.
You acknowledge and agree that the cryptographic and blockchain technologies including tokens, Wallets, Smart Contracts, and Decentralized networks are novel, experimental, and speculative, that therefore there is significant uncertainty regarding the operation an defects and risks thereof, and the application of existing law thereto, and that regulatory regime governing blockchain technologies, non-fungible tokens, cryptocurrency, and other crypto-based items is uncertain, and new regulations or policies may materially and adversely affect the provision and/or development of the Survives.
The transactions by use of the Services may be irreversible, and accordingly, losses due to fraudulent or accidental transactions may not be recoverable. You acknowledge and agree that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of the above risks for yourself, and that we do not give advice or recommendations regarding NFTs, including the suitability and appropriateness of, and investment strategies.
The Services rely on third-party platforms or systems including IPFS and various blockchain systems, but we cannot guarantee continued operation of such platforms or systems or integrity and persistence of data on such systems.
15. Intellectual Property Rights
Without prejudice to the User’s rights in its own materials, the parties hereby agree that the User shall not acquire any Intellectual Property Rights whatsoever in respect of the Application, the Services, documentation and other materials used by us in connection with or related to the provision of the Services hereunder.
Save where otherwise expressly specified, we shall retain ownership to all Intellectual Property Rights of which it is the owner, or of which it becomes the owner during the course of this Agreement’s term. For the avoidance of doubt, all copyright inherent in the presentation and/or ‘look and feel’ of the Website and the Services is our sole property.
We warrant that it has all necessary right, title and interest to enable the User to benefit from the Services in accordance with this Agreement.
The User hereby grants to us:
A non-exclusive, royalty-free, world-wide licence during the term of use of the Services to use, copy, reproduce, and manipulate Content and data provided by the User or resulting from the Services for the purposes of using the data for the provision of the Services; and
A non-exclusive, royalty-free, world-wide licence during the term of use of the Services to use, reproduce and display the User’s trade marks for the purposes of using the data for the provision of the Services.
Subject to any contrary provision in this Agreement, we undertake only to use the User’s trade marks for the purpose of providing the Services and for marketing purposes.
For the purposes of this Clause 18, the following events shall be deemed “acts of default”:
if a party commits any material breach of any term of this Agreement;
if a party becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
If the User commits an act of default, then we may forthwith suspend the provision of the Services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement.
If either party commits an act of default, the other party may terminate this Agreement by notice in writing forthwith.
We shall be entitled to terminate this Agreement by giving 30 days’ written notice.
The User shall be entitled to terminate this Agreement by giving 30 days’ written notice.
We shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately by notice to the User:
if the User undergoes a change of control which does not result in control passing to a company that, immediately prior to the change in question, was an Affiliate of the User;
if the User sells all of its assets or is merged or re-organised in circumstances where it is not the surviving entity;
if we cease to offer the Services to Shopify; or
if the User disputes the ownership or validity of our Intellectual Property Rights.
Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
In the event of termination of this Agreement: -
the User agrees promptly to pay to us all outstanding Fees (and any other payments due) if applicable;
Our entitlement to use the User’s trademarks ceases immediately except as necessary for the provision of any post-termination services;
We may in its sole discretion agree to provide any assistance reasonably requested by the User in connection with the hand-over to a third party of any services or data, but shall not in any circumstances be obliged to provide such assistance, where we do provide such assistance, it shall be entitled to charge its then current standard rates in respect of the same; and
the User’s right to receive the Services shall cease automatically.
Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into force or continue in force on or after that termination. For the avoidance of doubt, termination of this Agreement shall not in any circumstances entitle the User to any form of rebate or refund.
17. Confidentiality and Ownership of User Data
Subject to Clause 17.3, each party receiving information pursuant to this Agreement (“Receiving Party”) shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other party (“Disclosing Party”) disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to the Receiving Party and which relate to the Disclosing Party or any of its Affiliates (“Confidential Information”).
Each party hereby undertakes not to, without the other’s written consent, disclose the others’ Confidential Information in whole or in part to any other party (save those of its employees, agents and sub-contractors involved in the provision of the Services and who have, and to the extent that they have, a need to know the same).
The provisions of Clause 17.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
trivial or obvious;
already in the Receiving Party’s possession without duty of confidentiality on the date of its disclosure to it by the Disclosing Party;
in the public domain other than as a result of a breach of this Clause; or
to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the Receiving Party required to make such disclosure shall, unless legally precluded from doing so, use reasonable endeavours to notify the Disclosing Party of such requirement prior to making the disclosure.
Each of Provider and the User hereby undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of the Confidential Information and the provisions of this Clause 17.
Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party's Confidential Information immediately upon becoming aware of the same.
For the avoidance of doubt, all User Data shall remain at all times the exclusive property of the User and may only be used by Provider in order to fulfil its obligations pursuant hereto.
Provider reserves the right to use all or part of any program, services or materials produced for or acquired on behalf of the User for demonstrating its expertise to potential clients, subject always to the provisions of this Clause 17.
The provisions of Clause 17 shall remain in full force and effect notwithstanding any termination of this Agreement.
18. Force majeure
Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub-contractors) including but not limited to acts of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute (except involving a party’s own employees), pandemic or other mass outbreak of illness, flood, fire or tempest (an “Event of Force Majeure”). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre-existing rights or obligations of either party.
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
To us: any notice, request, instruction or other document to be given hereunder shall be delivered or sent by first class recorded post to our registered office address or email (such email notice to be confirmed by delivery or read receipt).
To User: any notice, request, instruction or other document to be given hereunder shall be delivered or sent by email (such email notice to be confirmed by delivery or read receipt) to the User’s email address used as login to the subscribed services and/or registered with Shopify.
We are permitted to make announcements or information concerning this Agreement available in any advertising publicity promotional or other marketing activities without the prior written consent of the User. For the avoidance of doubt, we are permitted to use the User’s name, logo and any feedback that the User provide to us. The User shall, on request, assist us in preparing a case study which sets out the benefits that the User has derived from receipt of the Services.
The User shall not make an announcement or information concerning this Agreement or any ancillary matter shall be made or released or authorised to be made or released in any advertising publicity promotional or other marketing activities without our prior written consent.
Except for the payments specifically agreed in this Agreement, each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
23. Invalidity and severability
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
The User shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without our prior written consent.
We shall be entitled to assign this Agreement or all or any of its rights and obligations hereunder.
Provider shall be entitled to sub-contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Services itself.
27. Governing Law & Jurisdiction
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Japan.
Each party irrevocably agrees that the Tokyo Summary Court or the Tokyo District Court shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
The parties irrevocably agree that the Tokyo Summary Court or the Tokyo District Court are the most appropriate and convenient courts to settle any dispute or claim, and accordingly, no party will argue to the contrary.
28. Third Party Rights
No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.