TERMS AND CONDITIONS
IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SERVICE.
- License to the Service. Subject to the terms and conditions of this Agreement, including, without limitation, the payment of the Fees set forth below, 21Shares grants to Company a non-sublicensable, non-transferable, non-exclusive, revocable license to access and use the Service in accordance with any applicable documentation (“Documentation”), solely for Company’s internal business purposes during the Term.
- Proprietary Rights. 21Shares owns, and shall own, all right, title and interest (including all copyrights, patents, trademarks, trade names, trade secrets and other proprietary rights) in and to the Service and Documentation and any and all derivative works and improvements thereto. Apart from the limited license expressly granted in this Agreement, Company does not acquire any right, license, or interest in or to the Service or any associated software, Documentation, or any derivative works and/or improvements thereof or the intellectual property rights arising out of or related to any of the preceding.
- Restrictions. Company will not, will not attempt to, and will not allow any itself or a third party to: (i) interfere in any manner with the operation of the Service or the hardware or network used to provide the Service; (ii) copy, modify, alter, or make derivative works based on any part of the Service or any associated software, or Documentation ; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from any component of or devices connected to the Service or any associated software or web services or permit a third party to do any of the foregoing; (iv) sublicense, assign, sell, or lease to, or otherwise allow, any person other than a Company user to access the Service; (v) use the Service for purposes of providing third-party hosting or third-party application integration, service bureau, subscription or application service provider-type services; (vi) disclose to any third party the performance measures of the Service or benchmark tests or other comparisons of the Service with other services or software; (vii) remove or alter any proprietary or other notice, legend or symbol on or embedded in the Service or any associated software, or Documentation; (viii) access the Service for purposes of monitoring the Service’s availability, performance or functionality, or for any other benchmarking or competitive purposes; or (ix) use the Service, any or any Documentation or Company’s access to any of the foregoing to design, build, market, or sell any similar, competitive or substitute service.
- Access and Security. Company will designate certain of its employees and contractors as authorized to use the Service. Company is solely responsible for all activities that occur under Company's use or its user’s use of the Service. Company shall use commercially reasonable efforts to ensure that its users are responsible for maintaining the security and confidentiality of the Services and their credentials, and to prevent unauthorized access to or use of the Service. Company shall notify 21Shares promptly upon becoming aware of any unauthorized use of the Service.
- Fees. Company shall not pay a monetary fee to 21Shares (“Fees”) for use of the license to the Service. 21Shares reserves the right to charge a monetary fee in the future for use of or access to the Services, with fifteen (15) days notice provided (“Fee Notice”). Company’s continued use of the Services following that Fee Notice shall constitute consent to any Fees subsequently charged and any other terms provided herein
- Term. The Term of this Agreement shall commence upon the Company or any of its personnel’s use of the Services and continue until that use ceases. Company’s use of the Services shall constitute binding consent to any of the terms contained within this Agreement, and no separate signature or execution of this Agreement is required.
- Termination. 21Shares may unilaterally and in its sole discretion terminate this Agreement, for any reason and without notice to any other Party. 21Shares has the right (in addition to any other rights or remedies available) to unilaterally terminate or otherwise discontinue any other Party’s use of or access to the Services.
- Effect of Termination. Upon termination, Company shall immediately cease using the Service and Documentation, destroy all copies of any Confidential Information, software, and/or Documentation in Company’s possession or control, and provide certification of such destruction promptly upon 21Shares’s request.
- “Confidential Information” means scientific or business information, trade secrets or know-how, including software and documentation therefor, marketing, sales, operating, performance, cost, business and technical information, in any form, tangible or intangible, which may be disclosed or otherwise made available by either Party to the other Party pursuant to this Agreement. In addition, the terms and conditions of this Agreement shall be Confidential Information of each Party. 21Shares’s Confidential Information includes, without limitation, the Service, and Documentation. Except as otherwise expressly permitted herein, each Party, on behalf of itself and its employees and agents, agrees to maintain all Confidential Information of the other Party in strict confidence and exercise all reasonable steps to safeguard the confidentiality of the Confidential Information received from the other Party and will neither disclose nor use such Confidential Information other than as expressly permitted by this Agreement. This Agreement will not affect the receiving Party’s rights to use or disclose information that: (1) is or may hereafter be publicly available through no wrongful act of the receiving Party; (2) the receiving Party can show by its written records predating such disclosure that such information was known on a non-confidential basis by the receiving Party prior to the disclosure by the disclosing Party; (3) the receiving Party can prove by written records to have been lawfully disclosed on a non-confidential basis to the receiving Party by a third party subsequent to disclosure by the disclosing Party; or (4) which is independently developed by or for receiving Party without reference to or use of disclosing Party’s Confidential Information. The Confidential Information, including any source code, methodology, or other proprietary information, shall not be provided to Company’s investors, shareholders, external advisers, agents, or any other third parties, without prior express written consent from 21Shares.
- NO WARRANTIES; DISCLAIMER. THE SERVICE IS PROVIDED ON AN “AS IS” AND “WHERE AVAILABLE” BASIS, AND ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. COMPANY’S USE OF THE SERVICE IS AT ITS SOLE RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, 21SHARES DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, RELIABLE OR ERROR-FREE. COMPANY UNDERSTANDS AND AGREES THAT 21SHARES DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR: (1) THE ACCURACY, COMPLETENESS, LEGALITY OR RELIABILITY OF ANY DOCUMENTATION, CONTENT OR INFORMATION OR MATERIAL PROVIDED BY OR ACCESSIBLE THROUGH THE SERVICE; (2) THE SERVICE, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL.
- Indemnification. Company agrees to defend, indemnify and hold 21Shares Parties, against any third party losses, expenses, costs or damages (including the 21Shares Parties’ reasonable attorneys' fees, expert fees' and other costs of litigation) arising from, incurred as a result of, or in any manner related to (1) Company’s or any user’s use or misuse of the Service, (2) Company’s or any user’s breach of this Agreement.
- Governing Law and Venue. ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF THIS AGREEMENT, OR THE NEGOTIATION, VALIDITY OR PERFORMANCE OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS RULES OF CONFLICT OF LAWS. ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS SITTING IN NEW YORK, NEW YORK AND BOTH OF THE PARTIES HERETO CONSENT TO THE JURISDICTION AND VENUE OF SUCH COURTS.
- Miscellaneous. 21Shares has the exclusive right to change the terms of this Agreement, without notice to any other Party or user. Any such changes to the terms of this Agreement will be posted and reflected in a newly posted Agreement located at 21shares.com. Neither Party shall assign or purport to assign, the benefits or obligations of this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement to an affiliate or in connection with a merger, acquisition, sale of substantially all its assets, or other such corporate reorganization. The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of each Party. Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, or certified or registered mail, return receipt requested or email, and will be deemed given upon personal delivery, two (2) days after deposit with overnight courier or five (5) days after deposit in the mail or twenty-four (24) hours after a Party receives delivery receipt confirmation. Notices will be sent to Company or 21Shares at its address and to the designee set forth in the Agreement or such other address and designee as Company or 21Shares may specify in writing pursuant to this Section. Nothing in this Agreement will be construed to imply a joint venture, partnership, or agency relationship between Company and 21Shares, and 21Shares will be considered an independent contractor when performing services under this Agreement. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power, or remedy. The Parties agree that the Uniform Computer Information Transactions Act (UCITA), as passed by any state, will not apply in any way to this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one single agreement between the Parties. This Agreement, including any schedules or exhibits attached hereto, constitutes the complete and exclusive agreement between Company and 21Shares with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by 21Shares. In the event of a conflict between any of the terms, conditions or provisions of this Agreement, schedule or exhibit attached hereto, the applicable term, condition or provision of this Agreement shall prevail. Without limiting the generality of the foregoing, any use of the terms “sell,” sale,” “purchase,” or “acquire” in relation to any software, shall be deemed to mean “license pursuant to the terms and conditions of this Agreement.”