1. Important Information
1.1 Read these terms carefully before registering to use or using Immutable X’s Application Programming Interfaces (APIs) and/or Software Development Kit(s) (SDKs) and/or Back-End Infrastructure (Protocol). The following licence agreement applies to you if you install, copy or otherwise use the Protocol, and in doing so you hereby accept and agree to be bound unconditionally to all of the terms of this agreement.
1.2 This is a legally binding agreement between you (whether you register or use the Protocol as an individual, or a company or you are an individual representing any other entity) (‘Licensee’, ‘you’) and Immutable X Pty Ltd ACN 644 717 840 (Immutable X, us), an Australian company.
1.3 If you do not agree to all of the terms of this agreement, you must immediately stop using the Protocol and delete any software you have copied. Your continued use of any part of the Protocol shall constitute your acknowledgement and agreement to the terms of this agreement.
1.4 The licences granted under this agreement are so granted in consideration for the Licensee complying with the obligations set out in this agreement.
2. Protocol Licence
2.1 Subject to the terms and restrictions set forth in this agreement, Immutable hereby grants to the Licensee a worldwide, non-exclusive, revocable, non-transferable, royalty-free licence to use the Immutable X Materials (including the Protocol) only for the Permitted Purpose.
(hereafter, the Licence).
3. Brand Asset Licence
3.1 Subject to the terms and restrictions set forth in this agreement, Immutable hereby grants to the Licensee a worldwide, nonexclusive, non-transferable, royalty-free licence to use the Brand Assets in connection with the Permitted Purpose for the Term (Brand Asset Licence) for the Permitted Purpose provided always that:
(a) any use of the Brand Assets by the Licensee is always using only the published colours and logo style notified from time to time by Immutable;
(b) any goodwill derived from the Licensee’s use of the Brand Assets shall inure to the benefit of Immutable and if requested, the Licensee must execute such documents as are reasonably required by Immutable to confirm assignment of such goodwill;
(c) the Licensee shall not do, or omit to do, anything which may weaken, damage or be detrimental to the Brand Assets or the reputation or goodwill associated with the Brand Assets, or that may invalidate or diminish the validity of any trade mark within the Brand Assets;
(d) the Licensee shall not apply for, or obtain, whether directly or indirectly, registration of any trade or service mark, trade name or domain name in any country anywhere in the world which contains the words forming part of the Brand Assets, or which Immutable, acting reasonably, considers is confusingly similar to the Brand Assets; and
(e) if the Licensee becomes aware of any actual, suspected or threatened infringement of any Brand Assets, or any claim that the Brand Assets are infringing a third party’s Intellectual Property rights, the Licensee must immediately inform Immutable.
4. Licensee Brand Assets Licence
4.1 The Licensee hereby grants to Immutable a worldwide, nonexclusive, non-transferable, royalty-free licence to use the Licensees Brand Assets for the sole purposes of the promotion, marketing and advertisement of the Licensee’s collaboration with Immutable (Licensee Brand Asset Licence).
4.2 The Licensee hereby warrants that it has the necessary rights to use and to grant the Licensee Brand Asset Licence.
5. Licence Restrictions and Licensee’s Obligations
5.1 Licences are conditional
Other than to the extent expressly permitted in this agreement, or if express written authorisation is provided by Immutable, the Licence and Brand Assets Licence are conditional upon the Licensee’s strict adherence to all of the obligations of the Licensee set out in this agreement.
5.2 Licensee’s Obligations
The Licensee must:
(a) only access the Protocol by such means as are notified to the Licensee by Immutable from time to time and in no other manner;
(b) ensure that its systems and network connections meet the minimum requirements necessary to support the access and use of the Protocol, as required by Immutable, from time to time;
(c) identify itself and its beneficial owners to Immutable, and any entity it represents, and must not hide its identity;
(d) ensure that any employees or contractors who use the Protocol, as well as any End Users engaging with the Licensee’s Platform and/or any NFTs offered in connection with the Protocol, must be made subject to terms and conditions which are consistent with the terms of this agreement, including terms to the effect of those set out at the Schedule below;
(e) be responsible for the engagement of any End Users, including meeting any applicable anti-money laundering / counter terrorism financing (AML/CTF) or know your client (KYC) requirements at law, or any requirements for fair conduct in the operation of their Platform. To the extent any AML/CTF or KYC procedures are required, the Licensee must keep copies of any information required to be kept under those procedures for a period of not less than 7 years and provide copies to Immutable upon request.
(f) include in the Licensee’s End User Licence Agreement (EULA) terms and conditions substantially meeting those requirements set out at Annexure A to this agreement, and monitor and enforce compliance with that EULA with End Users and must enforce any breaches;
(g) remain responsible at all times for ensuring the legality, reliability, integrity, accuracy and quality of any Licensee Data. The Licensee is solely responsible for maintaining adequate security and protection of all Licensee Data transmitted to the Protocol, which may include encryption to protect the Licensee Data from unauthorised access as well as keeping any backup of Licensee Data and securing consent from End Users to the sharing of the Licensee Data;
(h) ensure that the Licensee Data does not include any personally identifiable or confidential End User information, including private keys, usernames, passwords, or bank account details;
(i) immediately notify Immutable of any breaches or alleged breaches or investigation relating to Immutable or the Licensee during the term, and of any problems, defects, bugs or errors encountered with the Protocol, as well as any suggestions or complaints received from End Users in relation to interactions involving the Protocol.
5.3 Limitations on use of the Protocol
The Licensee must not use the Protocol in any way which, and must ensure all End Users do not use the Protocol via the Licensee’s Platform in any way which:
(a) is beyond of the Permitted Purpose;
(b) seeks to pre-fetch, cache, index, copy, re-utilise, extract, incorporate, store (including in a database) or otherwise utilise any of the Protocol in a way which would effectively circumvent the Protocol or any automated Fee calculation or collection, to take steps which would exposes the Immutable X Materials to any viruses or other harmful program;
(c) would have the effect of reselling the services and functions which the Protocol provide other than as permitted via this agreement;
(d) seeks to compromise, break or circumvent any technical processes or security associated with the Protocol;
(e) is intended to be, or is part of, an effort to build a similar product or a competitive product to the Protocol;
(f) publishes or seeks to disseminate any defamatory, obscene or offensive material;
(g) promotes violence or discrimination or is, in the reasonable opinion of Immutable, misleading or promotes misinformation;
(h) infringes the intellectual property rights of another person, or which infringes any rights in the Brand Assets or permits any infringement of rights by an End User of the Brand Assets;
(i) breaches any legal duty owed to a third party;
(j) promotes illegal activity;
(k) is threatening or abusive or be likely to harass, upset, embarrass or annoy any other person;
(l) gives the impression that the user’s conduct originates from Immutable or is approved by Immutable;
(m) breaches any Applicable Law; or
(n) In Immutable’s determination, at their sole discretion, acting reasonably, is undesirable.
5.4 Licensee Warranties
The Licensee warrants:
(a) it is sufficiently experienced and educated to make decisions regarding the use of NFTs via the Protocol, including sufficient experience in dealing with and storing NFTs and operating digital assets / crypto assets and Blockchain systems and smart contracts generally;
(b) that it has all necessary experience, resources, certificates, licences, permits and approvals to use NFTs for the Permitted Purpose, and to meet all other obligations under and in accordance with this agreement and all Applicable Laws;
(c) that in operating any Platform it will deploy controls to prevent market manipulation by End Users including dummy bidding and wash trading;
(d) that the all information supplied by or on behalf of the Licensee is true and accurate as at the time it is given;
(e) that it is not involved in any capacity in any claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry, mediation or arbitration (nor which are pending or threatened);
(f) that as far as the Licensee is aware, there are no facts, circumstances or other information which both:
(1) the Licensee has not fully and fairly disclosed to Immutable in a manner and to the extent that would allow Immutable to make a reasonable assessment of those facts, matters and circumstances prior to the commencement of these terms; and
(2) is of such nature and materiality that a reasonable person, had it been made aware of, could not reasonably be expected to use NFTs for the Permitted Purpose.
5.5 Revenue Report
For the purposes of ensuring all Fees have been properly calculated and paid, no more than once per calendar quarter, Immutable may request that the Licensee provide a revenue report setting out all gross revenue generated by the Licensee’s business which is subject to the Fees under this agreement (Revenue Report). Each Revenue Report must be signed by the director or Chief Financial Officer of the Licensee who must confirm that the Revenue Report accurately reflects all Revenue generated in the period covered by the request.
5.6 Audit Rights
At Immutable’s request, the Licensee must make available their books and records to a third party auditor nominated by Immutable (Auditor) within 21 days of a request being made, for the purposes of the Auditor reviewing the Licensee’s books and records to verify that the Fees have been accurately calculated and paid. The Licensee must provide all assistance and accommodation at their own cost to the Auditor, whose fees must be paid by Immutable in the first instance. If, as a result of the audit, an underpayment of Fees is identified by the Auditor, then the Licensee shall immediately pay the underpayment, together with interest of 2% per month compounding and the Licensee must pay the costs of the audit (including the Auditor’s fees) as a debt due to Immutable.
6. Term and Termination
This agreement commences when the Licensee registers for a Protocol Account or otherwise is granted access to use the Protocol and continues until either the Licensee ceases using the Protocol or this agreement is terminated (Term).
6.2 Suspension or Termination
Immutable reserves the right to terminate or suspend the Licensees access to the Protocol without notice if the Licensee is in breach of any of the terms of this agreement.
6.3 Termination for convenience
This agreement may be terminated by Immutable at any time, without cause, in Immutable’s sole and absolute discretion.
6.4 Effect of Termination
(a) Any termination (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 hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
(b) On termination, for any reason:
(1) The Brand Asset Licence is automatically revoked; and
(2) The Licensee shall cease using the Protocol and shall immediately delete and destroy any copies of the Immutable X Materials then in its possession; and
(3) Any NFTs minted and sold remain the property of the owners of those NFTs at the time of termination.
7.1 The Fees are payable in the currency (or cryptocurrency) in which a transaction occurs involving the Protocol, including if occurring via the Licensee’s Platform.
7.2 Fees will be denominated in USD at the time of the transaction. Should the transaction currency at clause 7.1 not be USD, the Fees will be calculated by using the relevant current market exchange rate as determined by Immutable in its absolute discretion.
7.3 The Licensee agrees to pay the Primary Sales Fee and the Trading Fee and any other fees which Immutable notifies to the Licensee will apply.
7.4 Fees, including Trading Fees, will be automatically collected by the Protocol for trades of NFTs executed using the Protocol.
7.5 Terms of payment for any Primary Sales Fees may be the subject of a separate agreement between Immutable and the Licensee.
7.6 Immutable reserves the right to change the Primary Sales Fee or the Trading Fees or the terms of payment upon providing 48 hours notice.
8. NFT Minting
8.1 No transfer of Intellectual Property
Any NFT which is minted by the Licensee using the Protocol will remain the property of the Licensee or their End User (if the Licensee permits End Users to mint NFTs) and nothing in this agreement will transfer, or is intended to transfer, any Intellectual Property rights in any NFT to Immutable.
8.2 Private Keys
Immutable will not have access to, or keep any copies of any Private Key in respect of any NFT minted using the Protocol, nor will Immutable have any title or interest in the NFTs which are listed, minted or traded by the Licensee using the Protocol other than the right to the Fees set out in this agreement.
8.3 Licensee’s acknowledgements
The Licensee acknowledges and agrees that:
(a) any NFTs minted using the Protocol may be able to be listed and transacted on any platform (including the Platform which is accessing or using the Protocol, or on a peer-to-peer basis;
(b) Immutable does not represent that any NFT minted using the Protocol may or can be restricted to any particular platform; and
(c) Immutable makes no representation or promise as to any value (or lack thereof) in any NFT minted using the Protocol.
9. Immutable X’s obligations
9.1 Availability of Protocol and Disaster Recovery
For so long as Immutable chooses to maintain the Protocol, it will undertake reasonable efforts to ensure the Protocol is available, including hosting any part of the Protocol which requires hosting and maintaining a commercially reasonable disaster recovery plan (DRP), however neither Immutable, nor any of its Personnel, will be liable for any times at which the Protocol is not accessible including if this is due to factors outside of Immutable X’s reasonable control.
9.2 Technical Support
Immutable may make available technical support to the Licensee in respect of the Protocol at fees which will be provided upon request.
9.3 Standard of Personnel
Immutable warrants that, to the extent necessary to enable it to comply with all of its obligations under this agreement, it will employ suitable trained and experienced personnel.
10. Limitation of liability and release
10.1 Protocol provided “as is”
The Immutable X Materials, including the APIs, SDKs and Back-End Infrastructure, are provided “AS IS”.
10.2 No representations or warranties
Except to the extent any statutory rights apply which cannot be excluded, limited or waived, Immutable and its Affiliates and Licensors:
(a) make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Immutable X Materials, including the Protocol or Smart Contracts forming any part of the Protocol; and
(b) disclaim all warranties, including any implied or express warranties:
(1) of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement or quiet enjoyment; or
(2) that the Immutable X Materials, including any Back-End Infrastructure or Smart Contracts will be uninterrupted, secure, private, error free or free of harmful components or that any error will be fixed in the Protocol;
(3) that any data transmitted to the Protocol will be secure or not otherwise lost or altered;
(c) disclaim all liability for any harm or damage caused by any third-party hosting or other service providers.
10.3 End User Release
The Licensee must release, and must procure that all of its End Users agree to release, Immutable and its Personnel, and Immutable’s suppliers and contractors and their Personnel from any liability or responsibility whatsoever relating to the Licensee or their End User’s use of the Protocol, including in respect of trading NFTs via the Protocol, including for any loss of an NFT Asset, digital assets or tokens, and including in respect of any loss of profit, loss of revenue, loss of opportunities or loss of use, whether due to security breach or cyber attack, or electronic or technological failure, registration errors or for any other reason (End User Release).
10.4 Limitation of liability
To the extent permitted at law, and to the extent the End User Release is found not to limit liability for any reason, the liability of Immutable, and any of its Personnel, in contract, tort or otherwise (including negligence) arising directly out of or in connection with this agreement and/or the provision of the Protocol or performance or observance of its obligations under this agreement and every applicable part of it shall be limited in aggregate to a resupply of the Immutable X Materials or the cost of repeating the provision of the Protocol.
10.5 Exclusion of consequential loss
To the extent permitted at law, in no event shall Immutable be liable to the Licensee or their End Users for any loss of profits or loss of expectation, loss of goodwill, loss of business, loss of data or any other indirect or consequential loss or damage however arising.
11.1 To the maximum extent permitted by law, the Licensee agrees to indemnify and keep indemnified Immutable, and its Personnel, against any action, liability, cost, claim, loss, damage, proceeding or expense suffered or incurred directly or indirectly arising from the Licensee’s use of, or the use by the End Users of the Licensee using, the Protocol.
12.1 Neither party will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to these terms and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
13.1 Proceedings suspended
Neither party may begin legal proceedings in connection with a dispute arising out of or in connection with this agreement, other than a claim in respect of unpaid Fees, unless the steps in this clause have been followed, other than an application for equitable relief or urgent interlocutory relief; or
13.2 Notice of dispute
If a dispute arises out of or in connection with this agreement (including the validity, breach or termination of it), a party may notify the other party to the dispute (Dispute Notice). The notice must specify the dispute and indicate that the notifying party wants the dispute to be referred to mediation.
13.3 Commencement of mediation
(a) If the dispute is not resolved within 5 days after a Dispute Notice has been served (Notice Period), the dispute is by this clause submitted to mediation.
(b) The mediation must be conducted in New South Wales in accordance with the mediation guidelines / rules of the Resolution Institute, save any process in this clause which is inconsistent with those guidelines or rules.
(c) If the parties have not agreed on the mediator and the mediator’s remuneration within 5 days after the end of the Notice Period, then the mediator, and their remuneration, shall be fixed by nomination by the President of the Law Society of New South Wales or the President’s nominee, acting on the request of any party.
13.4 If dispute not resolved
If the dispute is not resolved within 60 days after the appointment of the mediator, any party may commence legal proceedings.
13.5 Dispute Resolution Confidentiality
All information relating to the subject matter of a dispute as disclosed during or for the purposes of dispute resolution under this clause must be kept confidential by each party, unless a party is compelled by a regulatory or government authority, court or tribunal to disclose that information.
Neither party will be taken as having waived any rights under this agreement unless the party has done so expressly in writing. The failure of any party to enforce their rights under this agreement at any time for any period shall not be construed as a waiver of such rights.
Any notice which may be given:
(a) by a party under this agreement by email and shall be deemed to have been duly delivered if delivered when the party sending such communication receives confirmation of such delivery by electronic mail; and
(b) in addition, Immutable may give notice under this agreement by posting material to the Website.
If any part of these terms is for any reason found to be unenforceable, that part is to be read down to the extent necessary to preserve its operation and if it cannot be read down it is to be severed, and the remainder of this agreement remains in full force.
14.4 No Assignment
The Licensee shall not assign or transfer all or any part of its rights under these terms without the written consent of Immutable.
14.5 Sales Tax
(a) All Fees referred to in this agreement are exclusive of any applicable goods and services tax (GST) sales tax, value added tax, use tax or analogous tax which shall be added to the amount of any Fees due and shall be paid by the Licensee. In the event such tax is not paid and is later found to be applicable to any payments due under this agreement, the Licensee agrees to pay such taxation amounts on demand together with any interest, costs or penalties levied on Immutable.
(b) If the Licensee imposes any other fees or charges in addition to the Fees, the Licensee is solely responsible for the imposition and collection of any GST, sales tax, value added tax, use tax or analogous tax which may be payable on those fees.
Immutable may amend the terms of this agreement from time to time and provide notice of the updated terms. Such terms take effect when the Licensee uses the Protocol following the change.
14.7 Entire Agreement
These terms constitute the entire agreement between the Licensee and Immutable in relation to its subject matter and supersedes all previous agreements and understandings between the parties in relation to its subject matter.
14.8 Independent Contractor
The parties enter into this agreement on an arm's length basis and nothing in this agreement and no conduct of the parties will be deemed to impose any other relationship, including employer-employee, principal-agent, trustee-beneficiary, fiduciary-beneficiary, joint venture, partner or other relationship. Other than as set out in this agreement, neither party is responsible for the acts or omissions of the other party or the other party’s personnel.
14.9 No further warranty or representations
Neither the Licensee or Immutable have given any warranty or made any representation to the other about the subject matter of these terms, other than those warranties and representations appearing in these terms.
14.10 Order of Precedence
To the extent there is any difference between these terms and any Documentation, advertisement or other communication, the content of these terms take precedence to the extent of such inconsistency.
14.11 Force Majeure
The Licensee and / or Immutable is not liable for a breach of these terms, to the extent that the breach is caused by circumstances (each a Force Majeure event) outside that party’s direct control (including fire, storm, flood, earthquake, explosion, war, epidemic, pandemic, labour shortage, act of any government or agency whether national or otherwise) and for the period that those circumstances continue, provided that this clause will not apply to any obligation on the Licensee to pay Immutable the Fees due or any other monies due. Any Party affected by a Force Majeure event will take reasonable steps reasonably available to it to overcome that Force Majeure event.
These terms must be construed and its provisions interpreted under and in accordance with the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the Courts of the State of New South Wales, including any appellate Courts thereof. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
15. Interpretation and Definitions
In this agreement, unless the context otherwise requires:
(a) reference to a person includes any other entity recognised by law and vice versa;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing one gender include every gender;
(d) any reference to any of the parties by their defined terms includes the Licensee or Immutable’s executors, administrators, legal personal representatives, successors and permitted assigns;
(e) a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed;
(f) clause headings are for reference purposes only and do not affect interpretation;
(g) a reference to these terms or any other document includes any variation or replacement of it;
(h) a reference to a statute or other law includes regulations and other instruments under it and any consolidations, amendments, re-enactments and replacements of it;
(i) a reference to a party means a person who is named as a Party to, and is bound to comply with the provisions of, these terms;
(j) a reference to ‘includes’ or ‘including’ means ‘includes, without limitation’ and ‘including, without limitation’ respectively;
(k) where a word or phrase is given a defined meaning in these terms, the other grammatical forms of the word or phrase have a corresponding meaning;
(l) a reference to an act includes an omission and doing an act includes executing a document.
In these terms, unless the context otherwise requires:
Account means the account that the Licensee may be required to create with Immutable in order to gain access to the Immutable X Materials;
Affiliates means as to any individual, corporation, partnership, limited liability company, association, trust, unincorporated entity or other legal entity (each a Person), any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the specified Person. The term “control” as used herein (including the terms controlling, controlled by, or under common control with) shall mean possession, directly or indirectly of at least fifty percent (50%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation), or the power to direct or cause the direction of the management or policies of an entity whether through ownership of securities, by contract or otherwise.
API means the Application Programming Interfaces made available from time to time by Immutable to Licensees and referred to in clause 1.1;
Applicable Law means any statute, law, regulation, ordinance, rule, determination, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, requirement, or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued by any governmental authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect, in any jurisdiction.
Auditor has the meaning set out at clause 5.6;
Back-End Infrastructure means software, hardware and networking architecture supporting the APIs and SDKs;
Brand Assets means the name “Immutable X” and associated logo used by Immutable X in connection with the Immutable X brand
Brand Asset Licence has the meaning set out in clause 3.1;
Dispute Notice has the meaning set out in clause 13.2;
Documentation means any material which Immutable makes available to the Licensee in connection with the use of the API;
End User means any third parties trading NFTs by interfacing with the Protocol, including via any Platform operated by a Licensee;
End User Release has the meaning set out in clause 10.3;
EULA means such terms and conditions or End User Licence Agreement in force between the Licensee in respect of its Platform and users of that Platform as referred to in clause 5.2(f);
(a) The Primary Sales Fees; and
(b) The Trading Fees.
Force Majeure event has the meaning set out in clause 14.11;
Immutable X has the meaning set out in clause 1.2;
Immutable X Materials means the APIs, SDKs, Back-End Infrastructure and Documentation;
Intellectual Property means all intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, code, trade, business, domain or company names, moral rights, rights in confidential information, know-how or other proprietary rights (whether or not any of these are registered and including any application for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;
Licence has the meaning set out in clause 2.1;
Licensee has the meaning set out in clause 1.2;
Licensee Data means any information transmitted to the APIs by the Licensee or by an End User of the Licensee’s operations which involves NFTs;
Licensee Brand Asset Licence has the meaning set out in clause 4.1;
NFT means a non–fungible cryptographically secured token;
Notice Period has the meaning set out in clause 13.3(a);
Permitted Purpose means:
(a) Minting or wrapping of NFTs; and
(b) Operating software involving those NFTs; and
(c) Operating a Platform to enable the trading of NFTs;
Personnel means any employee, contractor, subcontractor, supplier, agent, partner, shareholder, ultimate beneficial owner, director or officer of a party;
Platform means an interface hosted by or on behalf of the Licensee or other integration between the Licensee’s software and the Protocol which allows for interactions with NFTs, which may involve End Users registering their digital wallets with Immutable X, and/or include sales and trading or minting, including sales trading of NFTs minted via the APIs;
Primary Sales means the first time that an NFT collection is sold by a Licensee to an End User using the Protocol, presently available here;
Primary Sales Fee means those fees applicable to the Primary Sales of NFTs using the Protocol as published by Immutable from time to time, presently available here;
Private Keys mean the cryptographic private key corresponding to public keys in respect of NFTs;
Protocol includes the Immutable X Materials, APIs, SDKs and Back-End Infrastructure as set out in clause 1.1;
Revenue Report has the meaning set out at clause 5.5;
SDK means the software development kit(s) made available by Immutable from time to time in connection with the APIs;
Smart Contract means the system of software code running on the Ethereum Blockchain used as part of the Protocol;
Term has the meaning set out in clause 6.1; and
Trading Fee means those fees applicable to secondary trading of NFTs using the Protocol as published by Immutable from time to time, presently available here.
ANNEXURE ARequired inclusions in Licensee’s Platform
• A disclaimer that the Licensee’s Platform, including any associated supplier software and Application Programming Interfaces (Software), is provided “AS IS”.
• Provide that, except to the extent any statutory rights apply which cannot be excluded, limited or waived, the Licensee and its Affiliates and Licensors:
(a) make no representations or warranties of any kind, whether express, implied, statutory or otherwise to End Users regarding the Software, including the Protocol or Smart Contracts forming part of the Protocol; and
(b) disclaim all warranties, including any implied or express warranties provided to End Users:
(1) of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement or quiet enjoyment; or
(2) that the Software, including any back-end infrastructure or Smart Contracts will be uninterrupted, secure, private, error free or free of harmful components or that any error will be fixed in the Protocol;
(3) that any data transmitted to the Software by a User will be secure or not otherwise lost or altered;
(c) disclaim all liability for any harm or damage caused to any End User by any third-party hosting provider.
End Users must agree to release [the Licensee and] Immutable and its Personnel, and Immutable’ suppliers and contractors and their Personnel from any liability or responsibility whatsoever relating to the Licensee or their End User’s use of the API, including in respect of trading NFTs via the Protocol, including for any loss of an NFT Asset, digital assets or tokens, and including in respect of any loss of profit, loss of revenue, loss of opportunities or loss of use, whether due to security breach or cyber attack, or electronic or technological failure, registration errors or for any other reason.
• Limitation of liability
To the extent permitted at law, and to the extent the above release is found not to limit liability for any reason, the liability of the Licensee and/or its contractors and suppliers and any of its Personnel, in contract, tort or otherwise (including negligence) arising directly out of or in connection with this agreement and/or the provision of the services or performance or observance of its obligations under this agreement and every applicable part of it shall be limited in aggregate to a resupply of the services.
• Exclusion of consequential loss
To the extent permitted at law, in no event shall the Licensee or its contractors or suppliers be liable to an End User for any loss of profits or loss of expectation, loss of goodwill, loss of business, loss of data or any other indirect or consequential loss or damage howsoever arising.