1. Introduction These Terms of Service (“Terms”) of Newtek Holdings Limited, a company incorporated Under the Nevis Business Corporation Ordinance, 2017, bearing the registration number C 53374, with a registered address at Hamilton Lodge, Hamilton Estate, Charlestown, Nevis, PO Box 917, (including any of its Affiliates, the “Company”), (hereinafter"Newtek", "us" or "we") govern the access to and use of The Nikel Token company website https://www.nikeltoken.com/("Website"), its Application Programming Interface (API), and any other software, tools, features, or functionalities provided on or in connection with the offered partner Newtek service; including without limitation using its so-called "Software-as-a-Service" (SaaS) to create NFTs and any other services and functionalities, which might be integrated into the Website from time to time (collectively, the“Service”). For purposes of these Terms, “user”, “you”, and “you’re” means you as the user of the Website and / or Service. If you use the Service on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
From time to time, we may vary our Terms. The revised Terms will be available on our website. Please check back regularly to ensure you are aware of any variations we may make. If you continue to use our website after we make any changes, you will be deemed to have accepted any variations to our Terms. If you do not agree to such variations, we ask you not to use our website. These Terms were last updated on the date stated at the end of these Terms.
The use of certain services may be subject to additional terms and conditions. The users will be informed about the applicability of additional terms and conditions and will be required to accept them prior to using the respective service.
2. Definitions For the purpose of these Terms, Applicable Law shall mean all laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction together with all codes of practice having force of law, statutory guidance, regulatory policy or guidance and industry codes of practice. KYC shall mean all know-your-customer procedures and documentation, in particular including identification of the customer and end-customer, the versification of beneficial ownership, transaction monitoring as well as source of wealth and source of funds checks, all in accordance with the Singapore Anti-Money Laundering Act, its implementing ordinances and regulations and the Singapore sanctions regulations as well as the sanctions regulations of any other jurisdiction/authority deemed appropriate by Newtek. Intellectual Property Rights shall mean all intellectual property rights wherever in the world, whether registrable or un registrable, registered or un registered, including any application or right of application for such rights. These intellectual property rights include copyrights and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semiconductor topography rights and rights in designs. 3.Use of the Website in General 3.1 Accuracy and Availability of the Website
We do our best to make sure that our website is accurate, up-to-date and free from bugs, but we cannot promise that it will be and you are responsible for putting in place your own internet security and safety measures.
Access to our website is provided free of charge, except for the access to and use of certain services, and has not been developed to meet your specific requirements. We can not promise that it will be fit or suitable for your specific purposes.
Materials posted on our website are provided for general information purposes only and to inform you about us and our news, features, products and services. This information is not intended as any form of advice and should not be relied on as such. Any reliance that you may place on the information on the website is at your own risk.
Access to our website is permitted on a temporary basis and we reserve the right to suspend or terminate access to any part of it at any time without notice.
We update our website regularly and reserve the right to add, remove and otherwise change the Website and/or its content at any time without notice.
3.2 Access to our Website The use of the website, including the Service, is open to both natural and legal persons. Natural persons must be capable of acting, i.e. have the capacity to judge, and be at least 18 years old. You are responsible for making all arrangements necessary to access our website (and for any costs of doing so). In particular, you are responsible for ensuring that your computer and/or portable device is compatible with our website.
You are responsible for ensuring that all persons accessing the website through your internet connection are aware of these Terms.
We want you and others to enjoy using our website. When doing so, we ask that you observe the following rules:
a) you are not permitted to use, or cause others to use, any automated system or software to extract content or data from our website for commercial purposes except where you or any applicable third party has entered into a written agreement with us that permits such activity;
b) you agree not to use our website for any illegal or unauthorized purpose and you agree to comply with all Applicable Laws, which are applicable to your use of our Website, including copyright and other intellectual property laws;
c) you must not attempt to restrict another user of our Website from using or enjoying our Website and you must not encourage others to breach our Terms;
d) you must not interfere with our Website or any servers or networks connected to our Website, including by transmitting any worms, viruses, malware, spyware or any other code of a destructive, malicious or disruptive nature. You must not inject content or code or otherwise alter or interfere with the way any page of our Website is rendered or displayed in a user’s browser or device;
e) you must not change, modify or alter our Website or change, modify or alter another website so as to inaccurately imply an association with our Website or with us; and
f) you must not access our Website via means we have not authorized in writing in advance, including automated devices, scripts, bots, spiders, crawlers or scrapers (except for standard search engine technologies).
If you breach these Terms, or any of the other terms and policies referred to in our Terms, your ability to access and use our Website may be terminated by us immediately, where possible by giving written notice to you using the contact details you provide to us. 3.3 Accessing your Account
If you register for an account on our Website, you will be required to select an email address and password and provide other personal information. Your account details are personal to you, and you must keep such information confidential and not disclose them to any other person. We will be entitled to treat any action carried out through your account as being carried out by you. We are not liable for any acts or omissions by you in connection with the account or because of the account being compromised. You must notify us immediately if you have reason to believe that your account details may have been compromised or used by any other person. We reserve the right to suspend or terminate your access to your account for any reason at our discretion. 3.4 Your Privacy
The privacy of your personal information is important to us. Any personal information that you provide to us will be dealt with in accordance with our Privacy Notice, which explains what personal information we collect from you, how and why we collect, store, use and share such information, your rights in relation to your personal information and how to contact us and supervisory authorities if you have a query or complaint about the use of your personal information.
We are entitled to send electronic communications (e.g., via email, text messages, or other types of messages) to any user who has opened an account on our Website. These communications may include notices about your account (e.g., transactional information). We may also send you promotional communications via email that might be of interest to you. Users are entitled to oppose the sending of promotional communications at any time by sending a respective email to firstname.lastname@example.org.
3.5 Intellectual Property Rights in the Website Content:
Our Website and its contents are protected by certain rights, including registered and unregistered Intellectual Property Rights (“Rights”). These Rights belong either to us or to our licensors. We and our licensors expressly reserve all Rights in and to our Website and its contents. Nothing in these Terms grants you any legal rights in our Website or its contents other than as necessary to enable you to access and use our Website in accordance with these Terms. The use of any trademarks on our Website is strictly prohibited unless you have our prior written permission.
You may only view, print out, use, quote from and cite our Website and its contents for your own personal, non-commercial use on the condition that you give appropriate acknowledgment to us where appropriate and you do not remove our copyright or other proprietary notices.
3.6 User Generated Content
On certain parts of our Website, you may be invited to submit reviews or upload materials (“Your Content”). You must ensure that Your Content complies with the guidelines in the next paragraph. Your Content will be moderated by us and will be published (or not published) as determined by us at our sole discretion(whether or not it complies with our guidelines).
Your Content must not a) contain any material which is or may reasonably be considered to be threatening, defamatory, obscene, indecent, offensive, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, or in breach of confidence;
b) be illegal or infringe the Intellectual Property Rights of any third party, in any country in the world; and
c) be technically harmful (by way of example it must not include any computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
By uploading Your Content to the Website, you hereby grant us and our designees, together with users of our Website an irrevocable non-exclusive license (which is unlimited in time) to view and use Your Content without restriction, including by way of example for commercial purposes.
We make no guarantee that Your Content will be kept on the Website for any length of time, and we reserve the right to remove Your Content as we see fit. You are urged to keep back-up copies of any of Your Content submitted to us. The Website should not be used as your primary method to store or curate copies of your images, videos, or text, as Your Content may be removed permanently from the Website at any time, and we may not keep copies of Your Content.
If you wish to request us to stop using any of Your Content at any time, you should notify us by emailing email@example.com setting out details of Your Content (the “Notified Content”) and where it can be found on the Website. We will endeavor to respond promptly and to endeavor to cease using the Notified Content. However, please note that once you have posted Your Content, it may be shared and reposted by us on other websites and used in other media and publications. Whilst we will endeavor to cease using any Notified Content within a reasonable time of the date you notify us of your request to do so, we cannot give any guarantee that we will be able to do so where the Notified Content has been published on the Website or in other media.
Consumers may have certain statutory legal rights when using our Website. Nothing in these Terms affects these rights. We do not exclude our liability for: (a)death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; or (c) any matter for which it would be illegal for us to limit or exclude our liability.
We will not be liable for any loss that is not caused by us or that was caused by any event or circumstance beyond our reasonable control.
Newtek draws the user's attention to the fact that restrictions or impairments may arise which are beyond Newtek's control. This shall include, in particular, actions by third parties not acting on behalf of Newtek, technical conditions of the Internet beyond Newtek's control as well as force majeure. The hardware, software and technical infrastructure used by the user may also have an influence on Newtek's services. Insofar as such circumstances have an influence on the availability or functionality of the service provided by Newtek, Newtek shall disclaim any liability.
Any use by you of the Website or its contents in a manner not expressly permitted by our Terms may mean that you are infringing our Rights and/or the Rights of our licensors. We and our licensors reserve all rights and remedies available in respect of any such infringement.
You may link to any page of our Website, provided that you do so for non-commercial purposes and in a way that is fair and legal and which does not damage our reputation or take advantage of it. For the avoidance of doubt, the linking site must not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. We reserve the right to withdraw linking permission at any time and without notice.
You must not link to our Website in such a way as to suggest any form of association, approval or endorsement on our part where none exists and you must not remove, obscure or modify in any way any advertisements, copyright notice, or other information on our Website. Our Website must not be framed on any other website.
Our Website may contain links to third party websites and services. If you decide to visit any third party website or use a third party service, or purchase products from that third party, you do so at your own risk. It is your responsibility to satisfy yourself as to the reputation of such third parties and the services they offer. We are not responsible for the content, accuracy or opinions expressed on third party websites or services. Links that we make available do not imply that we are, or our Website is, affiliated to or associated with such websites or services.
Your browsing and interaction on any other website or your use of other services, including websites and services which have a link to or from our Website, is subject to that operator’s own rules and policies. In particular, third party websites will process your personal information in accordance with their own privacy notices. Please read all applicable third party policies and terms and conditions before proceeding.
3.9 Enquiries & Complaints
If you have an enquiry or complaint about our Website and its content, please send us an e-mail to firstname.lastname@example.org.
If required by Newtek in relation to the use of the Website or any Newtek's DM Services, any Customer and end-customer has to go through KYC procedures at Newtek sole discretion. Newtek has the right to reject any customer or end-customer without any reason or to terminate any existing business and or contractual relationship with an existing customer or end-customer immediately without any reason, but in particular if there are negative findings, any increased risks, any applicable sanctions or if a customer or end-customer is uncooperative in view of the KYC procedures. In cases of applicable sanctions, Newtek may also freeze the assets of the respective customer or end-customer or imply any other measure as required by applicable sanctions regulations or any sanctions regulation deemed appropriate by Newtek.
4. Use of the Service
The following provisions are applicable when you use the Service in addition to the above provisions governing the use of the Website in general.
4.1 Accessing the Service
In order to gain access to the Newtek Services, prior registration on the Website is required. In addition, a wallet not provided, hosted or operated by Newtek is required for the delivery of tokens. You are solely responsible for the wallet and Newtek is neither acting as custodian nor is liable for any acts or omissions by you in connection with or as a result of the non-custody wallet being compromised. You agree to immediately notify Newtek if you discover or otherwise suspect any security issues related to the Service.
By using your wallet in connection with the Service, you agree that you are using that wallet under the terms and conditions of the applicable provider of the wallet. Unless otherwise agreed upon between you and us, wallets are not operated by, maintained by, or affiliated with us, and we do not have custody or control over the contents of your wallet and have no ability to retrieve or transfer its contents. We accept no responsibility for, or liability to you, in connection with your use of a wallet and make no representations or warranties regarding how the Service will operate with any specific wallet. You are solely responsible for keeping your wallet secure and you should never share your wallet credentials with anyone. If you discover an issue related to your wallet, please contact your wallet provider.
You represent and warrant that your use of the Service will comply with all Applicable Laws. You are solely responsible for ensuring that the access and use of the Service in the corresponding country, territory or jurisdiction does not violate any Applicable Laws.
Your access and use of the Service may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance, or repair of the Service or other actions that we, in our sole discretion, may elect to take.
4.2 Content and Scope of Services
We provide you with the Service online by access to the Service with your account credentials ("Delivery Point"). The computing power required for the use of the Service as well as the necessary storage and data processing capacity are provided by us.
We are not liable for the establishment and maintenance of the data connection between your IT systems and the Delivery Point. It is your sole responsibility to ensure adequate data connections. In particular, you are responsible for ensuring that the latency and bandwidth from your desktops to our Delivery Point meet the capacity required by us.
We are entitled to change and adapt or discontinue the Service, including the provision of Software, particularly in the case of technological developments. We inform you at least one (1) month before such change is made. Insofar as this change affects aspects that are essential for the balance between performance and counter-performance between the Parties, you shall have an extraordinary right of termination with a notice period of two weeks to the date of change.
Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to these Terms. Continued use of the Service after any such changes shall constitute your consent to such changes.
Unless otherwise agreed by the Parties or specified in the documentation provided to you by us, the following services are provided:
Newtek provides a public API which can be used for minting NFT's and tokens. Thus, Newtek offers the users the use of the "Software as a service" (SaaS, hereinafter called "Software") that makes it possible to link digital files provided by the users to a so-called Non-Fungible Token (NFT), which can be inseparably assigned to the file via the Polygon Blockchain and thus authenticates the file as such, so that it can be recognized as such at anytime and it becomes possible to assign it to a concrete owner/proprietor (via connection to the latter's Polygon wallet). The process is hereinafter referred to as "Certification".
Storage Space: Newtek grants users storage space on servers and networks for storing its data. Users may store digital files on these servers and networks. Newtek will ensure that the stored data is accessible via the Internet within the scope of the functioning of the software. The user is not entitled to transfer this storage space to a third party for use, either in part or in full, against payment or free of charge.
The user undertakes not to store any content on the storage space whose provision, publication or use violates Applicable Law or agreements with third parties. In particular, the contents may not
violate legal prohibitions (in particular regulations of criminal law and competition law), morality and the Intellectual Property Rights of third parties; and/or
be racist, glorify violence or similarly reprehensible.
4.3 Access and Use Rights
No rights are granted to you hereunder other than as expressly set forth herein.
You have the right to access and use the Service, including the Software, subject to these Terms and any available documentation provided by us.
We here with grant you a non-exclusive, non-transferable, non-sub-licensable and time restricted right to access and use the Service, including the Software and any other content or materials distributed or made available as part of the Service, in accordance with these Terms. Any other rights, which are not expressly mentioned in these Terms, are not granted.
The license granted is in particular subject to the following limitations and/or conditions:
a) the Service, including the Software, may only be used by registered users personally and for non-commercial purposes:
b) the user must not make any Service or the Software available to any third party, or use any Service or the Software for the benefit of, anyone other than the user, unless expressly agreed otherwise between the Parties;
c) the user must not sell, resell, license, sublicense, distribute, make available, rent or lease any Service or the Software, or include any Service or the Software in a service bureau or outsourcing offering;
d) the user must not interfere with or disrupt the integrity or performance of any Service or third-party data contained therein;
e) the user must not modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof.
f) the user must not copy content except as permitted herein;
g) the user must not frame or mirror any part of any Service or the Software, other than framing on user's own intranets or otherwise for user's own internal business purposes ;
the user must not build a product or service using similar ideas, features, functions or graphics of the Service and it must not copy any ideas, features, functions, or graphics of the Service.
4.4 User Data
In case that a user uses storage space from us, the user hereby grants to us anon-exclusive right to copy, reproduce, store, distribute, publish, export, adapt, edit, and translate user data to the extent reasonably required for the performance of the Service. In addition, the user grants to us the right to sub-license these rights to our hosting, connectivity, and telecommunications service providers.
We are entitled to store user data in a backup system or separate backup data centre.To eliminate failures, we are authorized to make changes to the structure of the data or the data format.
The user warrants to us that the user data will not infringe Intellectual Property Rights or any other rights of any third party and does not infringe the Applicable Law.
For this section, user data means all data, works and materials uploaded to or stored in connection with the Service, including within the Software, by the user, transmitted by the Software at the instigation of the user, supplied by the user to us for storage, or generated by the Software as a result of the use of the Software by the user.
4.5 Temporary Suspension
We may suspend, in whole or in part, user's rights of access and use of the Service, including the Software, without notice, if use of the Service is in breach of these Terms or the behavior of the user threatens in our judgment the security, integrity or availability of the Services or the Software. However, we will use commercially reasonable efforts to provide the user with notice and an opportunity to remedy such violation or threat prior to such suspension.
The temporary suspension of access and usage rights has the following effects:
The user remains fully liable for all fees incurred up to the date of suspension;
The user remains liable for all fees and costs applicable to all Services for which access has not been suspended; and
c) The user data stored with us is not affected by the suspension.
We may employ subcontractors of our choice to fulfill our obligations and to perform the Service.
4.7 Intellectual Property Rights in Connection with the Service
We and/or our licensors and suppliers own all copyright, trademarks, trade names, patents and other Intellectual Property Rights subsisting in, created, or used in connection with the Service, including the Software. THE SOFTWARE IS LICENSED, NOT SOLD. Except as expressly stated herein, these Terms do not grant users any Intellectual Property Rights in the Service, including in the Software, and all rights not expressly granted are reserved by us and our licensors and suppliers.
The structure, organization, and source code of the Software are the valuable trade secrets and confidential information of us and our licensors and suppliers. The Software is protected by law, including but not limited to the copyright laws of Switzerland and other countries, and by international treaty provisions.
Both parties' and other trademarks contained in the Software or used in connection with the Service are trademarks or registered trademarks of the parties in Switzerland and/or other countries. Third party trade-marks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. Both parties may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols, or labels in the Software. This Agreement does not authorize any party to use the other party's or its licensors' or suppliers' names or any of their respective trademarks.
We are entitled to terminate the agreement with the user in the event of severe infringement of our Intellectual Property Rights in the Service, including in the Software, by the user for good cause or to suspend access to the Service temporarily.
We welcome feedback, comments, and suggestions for improvements to the Service, including the Software (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title, or interest in the Service, including the Software, or in any such Feedback. You agree that we may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to us any and all right, title, and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other Intellectual Property Right) that you may have in and to any and all Feedback.
4.8 Warranties and Risk Assumptions
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND NEWTEK EXPRESSLY DISCLAIMS WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEWTEK MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY FOR WHETHER THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B)WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR(C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. NEWTEK DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NEWTEK WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. WHILE NEWTEK ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE SAFE, NEWTEK CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, CONTENT LINKED TO OR ASSOCIATED WITH ANY TOKENS OR NFTS, OR ANY NFTS YOU INTERACT WITH USING OUR SERVICE OR OUR SERVICE PROVIDERS’ SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CAN NOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD NEWTEK RESPONSIBLE FOR ANY BREACH OF SECURITY.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF NFTS, CONTENT, AND/OR CONTENT LINKED TO OR ASSOCIATED WITH NFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (A) USER ERROR,INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) UNAUTHORIZED ACCESS OR USE; (D) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUT EFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR NFTS.
NFTS EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ASSOCIATED BLOCKCHAIN. ANY TRANSFERS OR SALES OCCUR ON THE ASSOCIATED BLOCKCHAIN. NEWTEK CAN NOT EFFECT OR OTHERWISE CONTROL THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS OR UNDERLYING OR ASSOCIATED CONTENT OR ITEMS.
NO NEWTEK PARTY IS RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G.,WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE NFTS. NO NEWTEK PARTY IS RESPONSIBLE FOR LOSSES OR INJURY DUE TO LATE REPORTS BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING LOSSES OR INJURY AS A RESULT.
To the extent that a properly submitted notice of default in connection with theSoftware is justified, we will remedy the defect. Our performance exclusively comprises either the delivery of a Software update (-fix) or a corrected version. If we are unable to remedy the defect or fail to remedy the defect within a reasonable period of time, the user may withdraw from the agreement with us in accordance with Art. 107 et seq. Swiss Code of Obligation.
The user shall support us to the fullest extent reasonably practicable in the event of any defect being remedied. We may refuse the chosen method of remedy if it is only feasible at unreasonable cost.
If the user has asserted a warranty claim against us and it is determined that either there is no defect or that the claimed defect does not require us to provide a warranty, the user agrees to reimburse us for all expenses incurred because of the user's gross negligence or willful misconduct.
Assumption of Risk
You accept and acknowledge:
a) The value of a TOKEN OR NFTs is subjective. Prices of TOKENS OR NFTs are subject to volatility and fluctuations in the price of cryptocurrency can also materially and adversely affect TOKEN OR NFT prices. You acknowledge that you fully understand this subjectivity and volatility and that you may lose money;
A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility of TOKENS OR NFTs;
The regulatory regime governing blockchain technologies, non-fungible tokens, cryptocurrency, and other crypto-based items is uncertain, and new regulations or policies may materially adversely affect the development of the Service and the utility of TOKENS OR NFTs;
You are solely responsible for determining what, if any, taxes apply to your transactions. Newtek is not responsible for determining the taxes that apply to your TOKENS OR NFTs;
Newtek does not control the public blockchains that you are interacting with and does not control certain smart contracts and protocols that may be integral to your ability to complete transactions on these public blockchains. Additionally, blockchain transactions are irreversible and Newtek has no ability to reverse any transactions on the blockchain; and
There are risks associated with using Internet and blockchain based products, including, but not limited to, the risk associated with hardware, software, and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to your third-party wallet or Account. You accept and acknowledge that Newtek will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Service or any Blockchain network, however caused.
4.9 Liability for Services and the Software
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL NEWTEK OR OUR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM THESE TERMS OR THE SERVICE, PRODUCTS OR THIRD-PARTY SITE SAND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE),BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF NEWTEK OR OUR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B)FOR ANY OTHER CLAIM, DEMAND, OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF THE DELIVERY, USE, OR PERFORMANCE OF THE SERVICE. ACCESS TO, AND USE OF, THE SERVICE, PRODUCTS OR THIRD-PARTY SITES, AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF NEWTEK ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO AND USE OF THE SERVICE, CONTENT, NFTS, OR ANY OTHER NEWTEK PRODUCTS OR SERVICES EXCEED THE AMOUNT RECEIVED BY US FOR OUR SERVICE DIRECTLY RELATING TO THE ITEMS THAT ARE THE SUBJECT OF THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
5. Fees and Payments
5.1 Using the Newtek_platform and granting of storage space
The sole possibility of using the Newtek platform and its API as well as granting of storage space after account registration is free of charge. 5.2 Software as a service (SaaS) for generating NFT's
Each minting process (Certification), is linked to a usage fee, which is due upon the successful sale of a TOKEN OR NFT. The payment is not made in Fiat but by transfer of cryptocurrencies. The usage fee regarding the Services in cryptocurrencies shall be determined by the Newtek price list valid at the time of the certification process.
It is understood and agreed between the Parties that any payments made and any other consideration given under this Agreement are each exclusive of any value added(“VAT”), which shall be added thereon as applicable and at the relevant rate. Where VAT is properly charged by the supplying Party and added to a payment made or other consideration provided (as applicable) under this Agreement, the Party making the payment or providing the other consideration (as applicable)will pay the amount of VAT properly chargeable only on receipt of a valid tax invoice from the supplying Party issued in accordance with the laws and regulations of the country in which the VAT is chargeable.
Each party will be responsible for complying with any and all obligations imposed on it under applicable law with respect to the collection and payment of any Taxes. Each party will cooperate with the other party, and furnish the other party with any customary written documentation or forms required under applicable law to enable the other party to comply with such obligations or to exercise any rights available under applicable law to minimize or to qualify for an exemption from any such obligations.
Moreover, the provider of the Polygon technology, in this respect might charge the customer a further fee for the performance of the process, according to their own current price list.
We accept the following forms of payment:
The technical processing of payments takes place on the Polygon blockchain in a single transaction. The End Customer has to pay the price agreed with the Customer in the form of cryptocurrencies to the Customer. The connection of the API or the publication of the project wallet address result sin the automatic deduction, as part of the TOKEN OR NFT file creation, of both the usage fee owed between the Customer and the Newtek and the fee owed between the Customer and the technology provider from the cryptocurrency amount paid by the End Customer.
You may be required to purchase or pay a fee to access some of our services. You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We bill you through an online billing account for purchases made via the Site. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in cryptocurrencies as specified by Newtek.
You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment provider for any such amounts upon making your purchase.
We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Site.
For sellers via Newtek:
You hereby grant us a power of attorney to collect all receivables that buyers wish to pay through the Site. We act as an agent on your behalf as the seller towards the buyers regarding collection. You agree that we have the right to deduct a fee for every purchase from the purchase price received from the purchaser before forwarding it to you. You have the option to revoke the power of attorney at any time prior to payment by the buyer. We also reserve the right to stop any payment (to be) made through the Site.
By agreeing to these Terms and accessing the Website or accessing and using the Service, including the Software, you agree, to the fullest extent permitted by Applicable Law, to indemnify, defend, and hold harmless Newtek, and our respective past, present, and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors, and assigns (individually and collectively, the “Newtek Parties”), from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses), and costs (including, without limitation, court costs, costs of settlement, and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract, or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Website or the Service, content, NFTs, or content linked to or associated with any NFTs (b) any Feedback you provide,(c) your violation or breach of any term of these Terms or Applicable Law, and(d) your violation of the rights of or obligations to a third party, including another user or third-party, and (e) your negligence or willful misconduct. You agree to promptly notify Newtek of any Claims and cooperate with Newtek Parties in defending such Claims. You further agree that Newtek Parties shall have control of the defence or settlement of any Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND Newtek.
7. Force Majeure
We are not liable to the user nor shall any other remedy be extended in respect of anything which, apart from this provision, may constitute a breach of these Terms arising by reason of force majeure (i.e. any event beyond a party's reasonable control, including acts of war, earthquakes, hurricanes, floods ,fires or other similar casualties, embargos, riots, terrorism, sabotage, strikes, governmental acts, insurrections, pandemics, epidemics, failures of power, restrictive laws or regulations, court orders, condemnation, failure of the Internet or other event of a similar nature).
The contract for the use of the platform including granting of storage space as well as the contract for the use of the Software for Certification may be terminated by both Newtek and the customer at any time. The termination can be made by deleting the user account.
If you breach any of the provisions of these Terms, we reserve the right, with or without notice and in our sole discretion, to suspend, disable, terminate, or delete your account and/or your ability to access or use the Service (or any part of the foregoing) at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us.
Upon termination of the agreement, the user's right to access the Website and use the Service, including the Software, ceases immediately.
The termination causes all payment obligations to be due.
The termination shall not prejudice any other remedies, which the Parties may have under these Terms.
Provisions which explicitly or implicitly survive the termination shall not be affected by the termination and remain in full force. These sections include, but are not necessarily limited to the Sections titled “Fees and Payment,” “Intellectual Property Rights,” “Indemnification,” “Warranty”, "Liability" and “Miscellaneous".
9.1 Amendments and Supplements
Amendments, supplements or rescissions of provisions of these Terms shall be in writing and require the mutual agreement of both Parties to be valid. An amendment of this obligation requires itself a written agreement in order to be valid.
9.2 Severability Clause
The provisions of these Terms shall be construed so as to be valid and enforceable according to Applicable Law. Should any provision hereof be unenforceable or invalid according to Applicable Law, it shall only be unenforceable or void to the extent of such unenforced ability or invalidity and shall for the remaining be replaced by a valid and enforceable provision which shall satisfy the legal and economic meaning/result of the ineffective provision. The remaining provisions of these Terms remain binding and in full force. The same shall apply to any gap in these Terms.
9.3 Prohibition of Assignment
The Parties may not assign or delegate, in whole or in part, either these Terms or any of their rights and obligations under these Terms without the prior written consent of the other Party. Any such assignment or delegation performed without the aforementioned written consent shall be null and void. However, we are entitled to assign our rights and obligations under these Terms without the consent of the user to affiliates, group companies or to legal persons or companies controlled by us.
9.4 Governing Law, Jurisdiction and Dispute Resolution
These Terms shall be governed by and construed in accordance with the substantive laws of Lichtenstein, to the exclusion of the principles of conflicts of laws thereof and the United Nations Convention on Contracts for the International Sale of Goods.
Any dispute, controversy or claim arising out of or in relation to these Terms or future non-contractual claims including the validity, invalidity, enforceability, interpretation, execution, breach, modification or termination thereof, shall be submitted to the exclusive jurisdiction of the courts of Singapore.
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