This Niftory Services Agreement (including any Order Information, as amended and in effect from time to time, this “Agreement”), is entered into between Niftory, Inc., a Delaware corporation (“Niftory”), and you (“Customer,” “you” or “your”). Niftory and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I AGREE” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY CLICKING ON THE “I AGREE” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DISAGREE” BUTTON BELOW.IF YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH NIFTORY FOR YOUR USE OF THE SERVICES, THIS AGREEMENT WILL NOT APPLY TO YOU UNLESS THE WRITTEN AGREEMENT DOES NOT COVER A PARTICULAR SERVICE, IN WHICH CASE THIS AGREEMENT WILL APPLY SOLELY TO YOUR USE OF THAT PARTICULAR SERVICE. UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT IN PLACE WITH NIFTORY FOR YOUR USE OF THE SERVICES, IF YOU DO NOT ACCEPT THESE TERMS YOU MAY NOT ACCESS OR USE THE SERVICES.
“Services” means, collectively, the products and services provided by Niftory that (a) you use, including without limitation products and services that are on a trial basis or otherwise free of charge, or (b) that you order under an Order Document. Services includes products and services that provide platform and hosting services, including access to any application programming interface, communications, and storage services used in connection therewith.
“Documentation” means Niftory's documentation, including user guide, help information and other documentation and information regarding the Services.
“Customer Blockchain Application” means any software application or service that you make available to your end users that interfaces with the Service.
“Customer Digital Collectibles” mean the non-fungible tokens or other customer-generated applications created using the Service and implemented on a blockchain platform.
“Customer Products” means, collectively, the Customer Blockchain Application and the Customer Digital Collectibles.
2.1 Provision of the Services. Niftory will: (a) provide the Services to you pursuant to this Agreement, the applicable Documentation, and any applicable Order Information, and in accordance with laws applicable to Niftory's provision of the Services to its customers generally (i.e., without regard for your particular use of the Services), subject to your use of the Services in accordance with this Agreement, the applicable Documentation, and any applicable Order Information; and (b) use commercially reasonable efforts to provide you with applicable support for the Services.
2.2 Customer Responsibilities. You will: (a) be solely responsible for all use of the Services and Documentation under your account and in connection with each Customer Product; (b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Customer Products available to your end users in connection with the sale or licensed use of each Customer Product as permitted herein) or offer them on a standalone basis; (c) use the Services only in accordance with this Agreement, the applicable Documentation, any applicable Order Information, and applicable law or regulation; (d) be solely responsible for all acts, omissions, and activities of your end users, including their compliance with this Agreement, the applicable Documentation, any applicable Order Information, and applicable law or regulation; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Niftory promptly of any such unauthorized access or use; (f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (g) comply with your representations and warranties set forth in this Agreement.. Customer hereby agrees to indemnify and hold harmless Niftory against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing.
2.3 Limitations. Niftory will not be responsible or liable for any failure in the Services resulting from or attributable to: (a) Customer's failure to use the Services in accordance with Niftory's requirements, including without limitation with instructions included in the Documentation; (b) failures in any telecommunications, network or other service or equipment that are not within Niftory's reasonable control; (c) Customer's delivery of video clips, images, text or other content (the “Customer Content”) to Niftory to perform the Services or create Customer's Products or provide the Services; (d) any force majeure or other cause beyond Niftory's reasonable control; (e) scheduled maintenance, if reasonable notice is provided; or (f) unauthorized access, breach of firewalls or other hacking by third parties, except to the extent such access, breach or hacking is caused by Niftory's negligence or willful misconduct.
2.4 Outages and Service Suspensions. Niftory will be responsible and liable solely for Niftory's own infrastructure failures in accordance with its SLA. However, in no event, will Niftory be liable for a blockchain network's own failure which includes, but is not limited to, a blockchain network not being able to generate keys, network congestion and software bugs. Niftory will be responsible for Customer's lost Customer Digital Collectibles if any of the following occurs: (a) Niftory's infrastructure fails to switch from one region to another region due to a region-based outage; (b) Niftory's infrastructure fails to switch from one infrastructure provider to another infrastructure provider due to an infrastructure provider-based outage; (c) any memory leaks in the blockchain network software; and (d) single, isolated faults in the blockchain network software causing process crashes (but excluding recurring bugs or issues that regularly arise in the blockchain network software) (each, a “Service Default” and, collectively, the “Service Defaults”). In the event that any Service Default occurs, Niftory will reimburse Customer for any Customer Digital Collectible lost that Customer provides reasonable evidence were lost during the occurrence of such Service Default. Such reimbursement shall be Customer's sole remedy in connection with any damages or losses occurring as a result of a Service Default, unless other direct damages are suffered by Customer.
Niftory may suspend the Services immediately upon written notice to you for cause if Niftory, in good faith, determines: (a) that you or your end users materially breach (or Niftory, in good faith, believes that you or your end users have materially breached) any provision of this Agreement,; (b) there is an unusual and material spike or increase in your use of the Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services; (c) that its provision of the Services is prohibited by applicable law or regulation; (d) there is any use of the Services by you or your end users that threatens the security, integrity, or availability of the Services; or (e) that information in your account is untrue, inaccurate, or incomplete.
3.1 Description of the Wallet Services. The Wallet Services consist of the following:
3.1.1 The Wallet application allowing users to perform the following actions in respect of a Wallet: (i) create a new Wallet; (ii) manage the functions of this Wallet; and (iii) initiate a transaction on the blockchain (a “Transaction”).
3.1.2 Transaction services. You will be able to specify addresses on the Flow Network. and can make a Transaction by selecting a Wallet, optionally choosing a destination address and any Digital Collectible or non-currency data you want to store or transfer and authorize with your API secret. Once authorized, you send the Transaction to the blockchain. To make a Transaction, the third-party application can use the Niftory API to send the Transaction to Niftory. Niftory executes the blockchain itself, depending on the parameters specified in the API call.
3.1.3 Communication linking. You will optionally be able to link addresses on the Flow Network to your communication channels like mobile number and email address. Linking these addresses to contact details will make it possible for Niftory to send Digital Collectibles to an email address or a mobile phone number instead of directly to a blockchain address as Niftory makes the translation.
3.2 Specific Terms Related to the Wallet Services.
3.2.1 The Wallet provides functionalities that allows you to store Digital Collectibles or non-currency data and to make Transactions via instructions to Niftory. Customers must ensure that their instructions to Niftory conform to the applicable rules of the blockchain.
3.2.2 The only authentic record of a Transaction is its recording in the blockchain associated with the concerned Digital Collectibles or non-currency data. Transactions must first be confirmed and recorded in the blockchain and this requires validation by the blockchain network.
3.2.3 The blockchain technology is based on a decentralized, peer-to-peer network or database supported by independent third parties, and is not controlled, owned nor operated by Niftory. Accordingly, Niftory cannot and does not guarantee that Transactions you initiate using the Services shall be confirmed and recorded in the blockchain associated with the concerned Digital Collectibles nor that once stored, they remain on the blockchain. Conflicts between recordings in the blockchain cannot be excluded, which means that a user's Transaction may not or no longer be recorded in the blockchain associated with the concerned Digital Collectibles.
3.2.4 Niftory will use its best efforts to have the Transaction you initiate validated and recorded in this blockchain. Niftory, however, cannot and does not guarantee that the Wallet reflects all Transactions or (any change in) title to or right on any Digital Collectibles.
3.2.5 By initiating an instruction for Transaction, you authorize Niftory to submit your Transaction to the blockchain network for validation and recording on the concerned blockchain. Once a Transaction has been submitted to the relevant blockchain network, the blockchain network will automatically record or reject the Transaction and neither you nor Niftory will be able to cancel or otherwise modify the Transaction. After being submitted for recording in the blockchain associated with the concerned Digital Collectibles, a Transaction may be unconfirmed for a period of time. A Transaction is not complete while it is in a pending state.
3.2.6 Wallet Services offered by Niftory are not intended to store or process currency, with the exception of any currency required to upload or transfer Digital Collectibles on the blockchain. You shall not use or modify the Wallet Service to store or process currency except as contemplated in this Section.
3.2.7 Niftory only performs services to enable Transactions on the blockchain and has no title, rights or interest in the Digital Collectibles that are the subject of your Transactions. You bear the risk of any Transaction not being recorded in the blockchain associated with the concerned Digital Collectibles or for any delay or conflicts in recordings. You choose the Digital Collectible(s) to which your Transactions relate as long as they are supported by Niftory and the counterparty for the Transaction. You are exclusively responsible for the Digital Collectibles you and your counterparty choose.
3.2.8 You are solely responsible for ensuring all Transaction details are correct, and you must carefully verify all transaction information prior to submitting transaction instructions. To the extent the Transaction is made as counterparty for the delivery of goods or services from a third party, Niftory's Services do not cover and Niftory undertakes no responsibility in relation to the delivery, quality or any other aspects of any such goods or service. You are responsible for loss of blockchain objects (including keys, except under Niftory's safeguarding) or Digital Collectibles. In case of API integration you will make sure that you only share your API keys or secrets with third-party applications you trust and you are responsible for any misuse of such keys or secrets.
4.1 Ownership Rights. As between the parties, Niftory exclusively owns and reserves all right, title, and interest in and to the Services, the Documentation, Niftory's Confidential Information (as defined below), Service Usage Data, and any feedback or suggestions you or your end users provide regarding the Services. As between the parties, you exclusively own and reserve all right, title, and interest in and to the Customer Products, your Confidential Information, and Customer Data, subject to Niftory's rights to process Customer Data in accordance with this Agreement.
4.2 Customer Data and Aggregate Usage Data. You grant Niftory and its affiliates the right to process Customer Data as necessary to provide the Services in a manner that is consistent with this Agreement and the Niftory Privacy Notice. You are responsible for the quality and integrity of Customer Data. Customer expressly acknowledges and agrees that Niftory may collect and retain information on the use, contents and performance of the Services in a depersonalized or aggregated form but not in a way that would identify Customer personally, or any of Customer's customers.
4.3 Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly: (a) use any of Niftory's Confidential Information (as defined below) to create any service, software, documentation or data that is similar to any aspect of the Services, provided that the foregoing does not prohibit independent development of similar functionality by Customer or third parties; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, except as permitted by Niftory in writing; (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, except as permitted by Niftory in writing; (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (f) knowingly permit any third party to engage in any of the foregoing proscribed acts.
4.4 Digital Collectibles and Customer Content. Customer Content will be incorporated into the Digital Collectibles Niftory creates for Customer and will be made available to registered users of Niftory's website for sale or exchange. By contributing Customer Content to Niftory, Customer acknowledges and agrees to the following terms, representations and warranties. Customer should only contribute Customer Content if Customer is comfortable with the following terms:
4.4.1 Customer Content that is unlawful may be flagged and removed without notice. If Customer content is removed and not obviously unlawful, Customer shall have the right to appeal the decision to a mutually agreeable arbitrator.
4.4.2 All Customer Content you provide to Niftory must comply with all applicable laws (including, without limitation, U.S. copyright law). Customer represents and warrants that (i) Customer owns or otherwise possesses all rights to use Customer Content; (ii) Customer has the permission to use the name and likeness of each identifiable individual person and to use such individual's identifying or personal information; (iii) Customer is authorized to grant all of the rights described in this Agreement; and (iv) the use of Customer Content as contemplated by this Agreement will not infringe or violate any intellectual property, privacy, publicity, contract or other rights of any person or entity.
4.4.3 Customer will be held solely responsible and liable for Customer Content and conduct using the Services in accordance with this Agreement and with Niftory's Terms of Service governing all authorized users of the Service, including Customer. Niftory will not be responsible or liable for any use of Customer Content by Niftory and Customer represents and warrants that Customer has all the rights, power and authority necessary to grant the rights granted herein to any Customer Content that Customer submits.
4.4.4 Customer Content may be modified or adapted (for example, videos clips may be edited or photos may be cropped) in order to meet design and technical requirements for Digital Collectibles or for any other reason. Customer is responsible for retaining original copies of Customer Content uploaded from a local source.
By uploading, posting, contributing or otherwise providing Customer Content to Niftory for purposes of generating the Digital Collectibles, Customer grants Niftory a limited, nonexclusive, worldwide perpetual and fully paid up license to use the Customer Content solely for the purpose of generating the Digital Collectibles as described herein
4.5 Trademark and Publicity Rights. Customer hereby grants Niftory the right to use Customer's company or business name and current and future trademarks, service marks and trade names (“Marks”) on the Niftory website or in Niftory marketing and sales materials solely for the purpose of identifying Customer as a Niftory affiliate or customer, subject to usage guidelines or pre-approvals or authorizations that Customer may provide to Niftory in writing. Niftory shall not use the Marks for any other purpose without first obtaining Customer's written consent, which shall not be unreasonably withheld.
As used in this Agreement, “Confidential Information” means information and materials provided by the disclosing Party (“Discloser”) to the Party receiving such information or materials (“Recipient”) that (a) are identified as confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt, each Party agrees that the business, technical and financial information, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the Discloser and its licensors. For avoidance of doubt, the existence of this business relationship, this Agreement, and all subject matters within the relationship of the parties are Confidential Information. Confidential Information does not include information that (a) is previously rightfully known to the Recipient without restriction on disclosure; (b) is or becomes known to the general public through no act or omission on the part of the Recipient; (c) is disclosed to the Recipient without restriction on disclosure by a third party without breach of any separate nondisclosure obligation; or (d) is independently developed by the Recipient without use of or reference to any Confidential Information of the Discloser. Except as expressly and unambiguously allowed herein, the Recipient will hold in confidence and not use or disclose any Confidential Information. The Recipient shall protect the confidentiality of the Discloser's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Notwithstanding the foregoing, each party may disclose the Confidential Information of the other party to its employees, consultants or other agents who have a bona fide need to know for such Confidential Information; provided, that each such employee, consultant or agent is bound by confidentiality obligations at least as protective as those set forth herein. Each Party shall be responsible for any breach of confidentiality by its employees, consultants and agents. Niftory's disclosure of the existence of this business relationship and the terms (except for the volume of digital assets on any Hosted Service) and existence of this Agreement, solely in connection with a bona fide due diligence inquiry for a financing, acquisition or similar transaction, subject to confidentiality obligations consistent with those herein, shall not constitute a breach of its obligations pursuant to this Section 5. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies or extracts thereof) will be returned to the Discloser, and the Recipient will make no further use of such materials. Promptly after any request by Discloser, Recipient will (x) destroy or return to Discloser all Confidential information and materials in Recipient's possession or control, and (y) upon written request by Discloser, confirm such return/destruction in writing. If required by law, the Recipient may disclose Confidential Information of the Discloser but will give prompt prior notice of such disclosure to the Discloser to permit the Discloser to intervene and to request protective orders or other confidential treatment therefor, if permitted by law.
Niftory may make the Services available to Customer free of charge for a limited experience (i.e., Testnet usage) or period, after which point Customer shall have the option to convert to a paid subscription. Payment terms and conditions shall be agreed upon separately in writing and referenced in the applicable Order Information. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Niftory's income.
7.1 General. Each party represents and warrants that: (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
7.2 Additional Niftory Commitments for Paid Services. With respect to paid Services, Niftory represents and warrants to Customer that (a) the Services will be provided in a professional and workmanlike manner in accordance with commercially reasonable industry standards; and (b) the Services will perform substantially in accordance with the Documentation in all material respects. If Niftory breaches any warranties in this Section, Customer's exclusive remedy and Niftory's sole obligation will be for Niftory to make reasonable efforts to correct the non-conformity or, if Niftory is unable to correct the non-conformity within fifteen (15) days after receipt of Customer's written notice, for Customer to terminate the applicable Order Information and receive a refund, on a pro rata basis, or any fees prepaid in such Order Information that are unused as of the termination effective date.
7.3 Services Generally. Customer acknowledges and agrees that factors beyond Niftory's reasonable control, including without limitation any force majeure event or Customer's failure to use the Services in accordance with Niftory's requirements, may interfere with the Services. Niftory hereby disclaims (for itself and its suppliers) all responsibility for any lost Customer Products resulting from any act or omission other than the Service Defaults. Except as expressly provided herein, Niftory is not responsible for any tokens that Customer stakes or otherwise stores or transfers using the Services. Customer acknowledges and agrees that Customer shall access and use the Services and Customer Products at Customer's own risk.
7.4 Disclaimers. EXCEPT TO THE EXTENT EXPRESSLY STATED IN SECTION 7 OF THIS AGREEMENT: (A) NIFTORY AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND (B) NIFTORY AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES ARE OR WILL BE ERROR-FREE, MEET CUSTOMER'S REQUIREMENTS, ACHIEVE ANY PARTICULAR RESULTS, OR BE TIMELY OR SECURE. NIFTORY AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY NIFTORY.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. NIFTORY IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY NIFTORY.
CUSTOMER AGREES THAT ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES. CUSTOMER ACKNOWLEDGES THAT NIFTORY IS UNDER NO OBLIGATION TO PROVIDE AN OUTCOME SIMILAR TO OTHER SERVICE PROVIDERS THAT MAY PROVIDE A HIGHER RETURN. MORE GENERALLY, IN ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS RELYING ON ANY OTHER COMMITMENTS, STATEMENTS OR OTHER MATTERS NOT EXPRESSLY ADDRESSED IN THIS AGREEMENT OR ORDER INFORMATION.
8.1 Customer. Customer agrees to defend, indemnify, and hold harmless Niftory and its affiliates, officers, directors, employees, agents, shareholders, successors and permitted assigns thereof against any claim by a third party that is related to: (a) Customer's breach of any material representation, warranty, responsibility, covenant or other agreement made herein; and (b) the gross negligence or intentional misconduct of Customer, including but not limited to any liability arising solely from Customer's failure to abide by applicable law or regulatory requirements as reasonably known by the industry at the time the acts in question are committed.
8.2 Niftory. Except as provided below, Niftory agrees to (a) defend Customer against any claim by a third party that the Services infringe a valid US patent (issued as of the Effective Date), or any copyright or trade secret, of such third party; and (b) indemnify Customer for damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded by a court of competent jurisdiction in a final, non-appealable judgment, or agreed to in a written settlement agreement agreed in writing by Niftory, arising out of such claims; and (c) defend and indemnify Customer for the gross negligence or intentional misconduct of Niftory, including but not limited to any liability arising solely from Niftory's failure to abide by applicable law or regulatory requirements as reasonably known by the industry at the time the acts in question are committed. If any Service becomes or, in Niftory's opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Niftory may, at its option (i) obtain for Customer the right to continue using the Service; or (ii) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to Niftory, then Niftory may (iii) terminate this Agreement upon written notice to Customer. The foregoing states the entire liability of Niftory, and Customer's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.
8.3 Exclusions. Niftory shall have no liability or obligation hereunder with respect to any claim based upon: (a) use of any Services in an application or environment or on a platform or with devices or blockchain assets for which it was not designed or contemplated; (b) modifications, alterations, combinations or enhancements of the Services not created by or for Niftory; (c) any portion of the Services that implements Customer's requirements; (d) Customer's continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement; or (e) any intellectual property right in which Customer or any of its affiliates has an interest.
8.4 Procedures. Any claim for indemnification hereunder is contingent upon (a) the indemnified party promptly providing written notice of the claim and reasonable cooperation, information, and assistance in connection therewith; and (b) giving the defending/indemnifying party sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BUT ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS, OFFICERS, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES; (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REWARDS, LOSS OF OPPORTUNITIES, LOSS OF ECONOMIC ADVANTAGE, LOSS OF BOND, BUSINESS, REVENUES, PROFITS AND GOODWILL; OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNT OF FEES PAID TO NIFTORY BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIMS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect until terminated as set forth below.
10.2 Termination. This Agreement may be terminated (in whole, or in respect of any Order Information) by a party: (a) if the other party materially breaches a provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, the party fails to cure such breach within 30 days (10 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party; or (b) as otherwise set forth in the Order Information.
10.3 Effects of Termination. Upon any expiration or termination of any order or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; and the provisions of Sections 4 (Proprietary Rights), 5 (Confidentiality), 6 (Payments), 7 (Limited Warranty and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10 (General Provisions) and this Section 10.3 shall survive.
11.1 Entire Agreement. This Agreement (including the Order Information) constitutes the entire agreement, and supersedes all prior or contemporaneous negotiations, discussions, understandings or agreements, whether oral or written, between the parties regarding the subject matter of this Agreement. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of an electronic copy shall have the same force and effect as execution of an original, and an electronic signature shall be deemed an original and valid signature. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be l̦imited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.2 Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA, without regard to conflict of law provisions of any jurisdiction. The Hosted Service is a service, not a good, and is not subject to the Uniform Commercial Code, the Uniform Computer Transactions Act, or the United Nations Convention on the International Sale of Goods. Exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in King County, Washington having jurisdiction over Niftory's offices, and both parties' consent to the jurisdiction of such courts with respect to any such action. Other than respect to seeking injunctive relief in connection with matters that qualify for such an extraordinary remedy under applicable law, neither Party may initiate any litigation against the other Party until after providing clear written notice of its intention to do so and first making a good faith effort to resolve the dispute informally through escalation to an appropriate level of executive management of both Parties for at least thirty (30) days after providing such notice. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
11.3 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
11.4 Notices. All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
11.5 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than payment obligations) due to any cause beyond its reasonable control, e.g. war, riots, labor unrest, fire, earthquake, flood, hurricane, epidemic, other natural disasters and acts of God the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
11.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and assigns (as defined herein) of the parties hereto.
11.7 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will be construed as having created either party as the employer, employee, agent or representative of the other party, or both parties as having created a joint venture or other form of joint enterprise, or fiduciary relationship between the parties.