Terms of Service
Please read these Terms of Service (the “Terms”) and our Privacy Policy https://www.uptop.xyz/privacy-policy (“Privacy Policy”) carefully because they govern your use of the website and interface located at https://www.uptop.xyz/ (the “Site”) and the platform, services, and functionalities accessible via the Site, corresponding mobile application (“App”), and/or application programming interface (“API”) offered by Airdrop Labs Inc., a Delaware corporation (“Uptop”). To make these Terms easier to read, the Site, our services and App are collectively called the “Services.”
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND UPTOP THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18 (DISPUTE RESOLUTION) BELOW FOR DETAILS REGARDING ARBITRATION. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 18 WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION 17 (GOVERNING LAW AND FORUM CHOICE) WILL APPLY INSTEAD.
1. Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you do not agree to be bound by these Terms, you are not authorized to use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. In that case, “you” and “your” will refer to that entity.
2. Privacy Policy. Please review our Privacy Policy, which also governs your use of the Services, for information on how we collect, use and share your information.
3. Changes to these Terms or the Services. We may update the Terms from time to time in our sole discretion. If we do, we will let you know by posting the updated Terms on the Site, to the App and/or may also send other communications. It is important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, it means that you accept and agree to the changes. If you do not agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time, we may change or discontinue all or any part of the Services, at any time, and without notice, at our sole discretion.
4. Who May Use the Services?
(a) Eligibility. You may use the Services only if you are at least 18 years old, capable of forming a binding contract with Uptop, and not otherwise barred from using the Services under applicable law.
(b) Compliance. The Services are only available to users in certain jurisdictions who can use the Services as permitted under applicable law. You certify that you will comply with all applicable laws (e.g., local, state, federal and other laws) when using the Services. Without limiting the foregoing, by using the Services, you represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo; and (b) you are not listed on any U.S. Government list of prohibited, sanctioned, or restricted parties. If you access or use the Services outside the United States, you are solely responsible for ensuring that your access and use of the Services in such country, territory, or jurisdiction does not violate any applicable laws. You must not use any software or networking techniques, including use of a Virtual Private Network (VPN) to modify your internet protocol address or otherwise circumvent or attempt to circumvent this prohibition. We reserve the right, but have no obligation, to monitor the locations from which our Services are accessed. Furthermore, we reserve the right, at any time, in our sole discretion, to block access to the Services, in whole or in part, from any geographic location, IP addresses, and unique device identifiers, or to any user who we believe is in breach of these Terms.
5. About the Services. Our Services facilitate interaction with certain decentralized cryptographic protocols, which we do not own or control (each, a “Protocol”) and other third parties for: (i) brand companies that use Uptop’s APIs (each, a “Brand”) to launch, create, and deploy (i.e., mint) using third party services, as applicable, their own promotions, rewards, and/or non-fungible token (“NFT”) loyalty programs for its end customers; and (ii) the Brands’ end customers (each, a “Consumer”) to claim NFTs created and deployed through Uptop’s APIs on third parties’ (including the Brands’) websites and mobile applications. We may also facilitate the creation of a digital wallet (“Uptop Wallet”) that enables you to self-custody and manage supported digital assets and interact with third-party services and supported Protocols and decentralized blockchains on which the NFTs are recorded (each, a “Blockchain”).
(a) Terms for Brands. If you are using the Services as a Brand, in addition to the Software as a Service / API agreement entered into between you and Uptop (the “SaaS Agreement”), you agree to the following terms:
(i) Agreements with Consumers. You agree that any terms associated with your own promotions, rewards, and/or NFT programs, including any terms related to the rights and obligations of the claimed NFTs, for Consumers will be solely between you and the Consumer, and Uptop is not a party to any such terms.
(ii) OFAC Compliance. You are solely responsible for ensuring that Consumers comply with applicable laws, statutes, ordinances, regulations, or sanctions programs, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”). You agree to consistently monitor and conduct regular checks for Consumer activity that violates any law, statute, ordinance, regulation, or sanctions program, including but not limited to OFAC.
(iii) Fees. You agree to pay any applicable fees, including Gas Fees and hosting fees, in connection with transactions on the Site, App, and/or through the API. “Gas Fees” mean
the fees that fund the network of computers that run the decentralized blockchain network, meaning that you will need to pay a Gas Fee for each transaction that occurs via the blockchain network. You further agree that additional fees may be set forth in the SaaS Agreement.
(iv) Brand Content.
(1) Posting Content. Our Services may allow you to store or share content such as text (in posts or communications with others), files, documents, graphics, images, music, software, audio and video. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as “Brand Content”. Uptop does not claim any ownership rights in any Brand Content and nothing in these Terms will be deemed to restrict any rights that you may have to your Brand Content.
(2) Permissions to Your Brand Content. By making any Brand Content available through the Services you hereby grant to Uptop a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your Brand Content in connection with operating and providing the Services.
(3) Your Responsibility for Brand Content. You are solely responsible for all your Brand Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your Brand Content under these Terms. You represent and warrant that neither your Brand Content, nor your use and provision of your Brand Content to be made available through the Services, nor any use of your Brand Content by Uptop on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
(4) Removal of Brand Content. You can remove your Brand Content by specifically deleting it. You should know that in certain instances, some of your Brand Content (such as posts or comments you make) may not be completely removed and copies of your Brand Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your Brand Content.
(b) Terms of Consumers. If you are using the Services as a Consumer, you agree to the following additional terms:
(i) Claiming NFTs. To use the Services to claim a third-party NFT through interaction with a Brand’s website and/or mobile application and through Uptop’s API, you will need to link your digital wallet(s), which may be an Uptop Wallet, on supported bridge extensions. Before claiming your NFT, we will ask you to download a supported electronic wallet extension and connect and unlock your digital wallet(s) with that extension. Once you submit an order to claim your NFT, your order is passed on to the applicable extension, which completes the transaction on your behalf. [Please refer to Section 5(c) below for more information about
the Uptop Wallet.] Although the terms of sale or redemption for any such NFT may be displayed on the Services, all such terms (including use of any digital art or other content associated with it, the benefits and entitlements associated with it, the price to be paid for it, and any restrictions, which may be technical, on the transfer of it, if any) are determined by the Brand, and Uptop is not a party to such terms, which are solely between you and the Brand. Uptop is not responsible for ensuring compliance with such terms or mediating or resolving any disputes arising out of the terms or the redemption, purchase, transfer (if applicable), or use of these NFTs, including of the associated benefits and entitlements.
(c) Uptop Wallet.
(i) Functionality. The Uptop Wallet enables you to interact with the Polygon Blockchain and/or other supported Blockchains and networks associated with the NFTs and other digital assets that the Services may, in our sole discretion, elect to support (together, “Supported Digital Assets”). Through such interaction, you will be able to: (A) create Supported Digital Asset account(s) in the Uptop Wallet to facilitate transactions; and (B) monitor, maintain, and transact with the associated Supported Digital Assets.
(ii) Uptop Wallet Password and Security. When setting up your Uptop Wallet, you will be responsible for securing your own access credentials, which may include one-time passcodes associated with your phone number, a “wallet password,” twelve-word seed phrase, “private key,” and/or other private access information (“Wallet Password”). You understand and agree that Uptop cannot, and will not, restore or recover your Wallet Password and you agree to keep your Wallet Password sale and confidential and immediately notify Uptop of any unauthorized use of your Uptop Wallet or other breach of security associated with your Uptop Wallet. You further acknowledge and agree that Uptop will not be liable for any loss or damage arising from your failure to comply with this Section.]
(d) Taxes. You are solely responsible for all costs incurred by you in using the Services, and for determining, collecting, reporting, and paying all applicable Taxes that you may be required by law to collect and remit to any governmental or regulatory agencies. As used herein, “Taxes” means the taxes, duties, levies, tariffs, and other charges imposed by any federal, state, multinational or local governmental or regulatory authority. You are solely responsible for maintaining all relevant Tax records and complying with any reporting requirements you may have as related to our Services. You are further solely responsible for independently maintaining the accuracy of any record submitted to any tax authority including any information derived from the Services. We reserve the right to report any activity occurring using the Services to relevant tax authorities as required under applicable law.
(e) Transactions Are Conducted on the Blockchain. Uptop does not buy, sell, or take custody or possession of any digital assets, nor does it act as an agent or custodian for any user of the Services. If you elect to buy or claim any digital asset, any transactions that you engage in will be conducted solely through the blockchain network governing the digital asset. You will be required to make or receive payments exclusively through the digital wallet that you have
connected to the Services. We will have no insight into or control over these payments or transactions, nor do we have the ability to reverse any payments or transactions. Accordingly, we will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions that you engage in via the Services.
(f) Suspension or Termination. We may suspend or terminate your access to the Services at any time in connection with any transaction as required by applicable law, any governmental authority, or if we, in our sole and reasonable discretion, determine you are violating these Terms or the terms of any third-party service provider. Such suspension or termination shall not constitute a breach of these Terms by Uptop. In accordance with its anti-money laundering, anti-terrorism, anti-fraud, and other compliance policies and practices, Uptop may impose reasonable limitations and controls on the ability of you or any beneficiary to utilize the Services. Such limitations may include, where good cause exists, rejecting transaction requests, freezing funds, or otherwise restricting you from using the Services.
6. Third-Party Services; Links to Third Party Websites or Resources.
(a) Third-Party Services.
(i) The Services may enable you to access services provided by third parties (for example, services for purchasing certain cryptocurrencies and funding your Uptop Wallet). You may also be able to link or connect your Uptop Wallet with third-party platforms or marketplaces. You are solely responsible for reviewing, and agreeing and complying with, the terms, conditions and policies applicable to all such third-party services, platforms or marketplaces.
(ii) You may incur a fee for use of, or access to, third party software and services (“Additional Services”) including through our construction of transactions that you execute through the Services. You acknowledge that we may receive fees in connection with your use of, or access to, Additional Services (“Integration Fees”). You further acknowledge that we may be paid such Integration Fees by the providers of the Additional Services or directly from you, and that transactions we construct for you to execute through the Services may include the payment of fees to us.
(b) Links to Third Party Websites or Resources. The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
7. Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
8. Uptop’s Intellectual Property. We may make available through the Services content that is subject to intellectual property rights. We or our licensors, or the third parties who otherwise own the intellectual property rights, retain all rights to that content.
9. Rights and Terms for Apps.
(a) App License. If you comply with these Terms, Uptop grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means. (b) Additional Information: Apple App Store. This Section 9(b) applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
10. General Prohibitions and Uptop’s Enforcement Rights. You agree not to do any of the following:
(a) Post, upload, publish, submit or transmit any Brand Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene,
pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
(b) Use, display, mirror or frame the Services or any individual element within the Services, Uptop’s name, any Uptop trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without Uptop’s express written consent;
(c) Access, tamper with, or use non-public areas of the Services, Uptop’s computer systems, or the technical delivery systems of Uptop’s providers;
(d) Attempt to probe, scan, or test the vulnerability of any Uptop system or network or breach any security or authentication measures;
(e) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Uptop or any of Uptop’s providers or any other third party (including another user) to protect the Services;
(f) Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Uptop or other generally available third-party web browsers;
(g) Create or list counterfeit items (including any NFTs);
(h) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(i) Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
(j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive, or false source-identifying information;
(k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
(l) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(m) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(n) Impersonate or misrepresent your affiliation with any person or entity;
(o) Engage or assist in any activity that violates any law, statute, ordinance, regulation, or sanctions program, including but not limited to OFAC, or that involves proceeds of any unlawful activity (including but not limited to money laundering, terrorist financing, or deliberately engaging in activities designed to adversely affect the performance of the Services);
(p) Engage in wash trading or other deceptive or manipulative trading activities;
(q) Use the Services to participate in fundraising for a business, protocol, or platform, including but not limited to creating, listing, or buying assets that are redeemable for financial instruments, assets that give owners the rights to participate in an ICO or any securities offering, or assets that entitle owners to financial rewards, including but not limited to, DeFi (or decentralized finance) yield bonuses, staking bonuses, and burn discounts;
(r) Fabricate in any way any transaction or process related thereto;
(s) Disguise or interfere in any way with the IP address of the computer you are using to access or use the Services, or that otherwise prevents us from correctly identifying the IP address and geographic location of the computer you are using to access the Services;
(t) Transmit, exchange, or otherwise support the direct or indirect proceeds of criminal or fraudulent activity;
(u) Violate any applicable law or regulation; or
(v) Encourage or enable any other individual to do any of the foregoing.
Uptop is not obligated to monitor access to or use of the Services or to review or edit any Services content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including Brand Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
11. Copyright Policy. Uptop respects copyright law and expects its users to do the same. It is Uptop’s policy to terminate in appropriate circumstances users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Uptop’s Copyright Policy at https://www.uptop.xyz/copyright-policy for further information.
12. Termination. We may suspend or terminate your access to and use of the Services at our sole discretion, at any time and without notice to you. You may disconnect your digital wallet at any time. 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 or any third party, to the fullest extent permitted by applicable law. Upon any termination, discontinuation or cancellation of the Services, the following Sections will survive: 5(a)(iii), 5(a)(iv)(2), 5(a)(iv)(3), 5(d), 7, 8, 10, 12, 13, 14, 15, 16, 17, 18, and 19.
13. Warranty Disclaimers. THE SERVICES, ANY CONTENT CONTAINED THEREIN, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. UPTOP (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES (INCLUDING ANY MATERIAL, INFORMATION, OR CONTENT THEREIN): (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (III) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS: OR (IV) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. UPTOP DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AS TO THE SERVICES, ANY MATERIAL, INFORMATION, OR CONTENT CONTAINED THEREIN. WE FURTHER EXPRESSLY DISCLAIM ALL LIABILITY OR RESPONSIBILITY IN CONNECTION WITH THIRD PARTY SERVICES. NOTHING HEREIN NOR ANY USE OF OUR SERVICES IN CONNECTION WITH THIRD PARTY SERVICES CONSTITUTES OUR ENDORSEMENT, RECOMMENDATION, OR ANY OTHER AFFILIATION OF OR WITH ANY THIRD PARTY SERVICES.
UPTOP CANNOT 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 US RESPONSIBLE FOR ANY BREACH OF SECURITY.
THE SERVICES MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF THE SERVICES AND/OR TELECOMMUNICATIONS INFRASTRUCTURE OR DISRUPTION, AND THEREFORE WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY, OR PERFORMANCE OF THE SERVICES CAUSED BY SUCH FACTORS. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER DATA.
UPTOP WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) BLOCKCHAIN NETWORKS, DIGITAL WALLETS, OR CORRUPT FILES; (IV)
UNAUTHORIZED ACCESS TO SERVICES; OR (V) ANY THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK.
NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK. UPTOP DOES NOT GUARANTEE THAT WE CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS OR OTHER DIGITAL ASSETS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
14. Assumption of Risk. You accept, acknowledge, and assume the following risks:
(a) The prices and liquidity of digital assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the NFTs made available through the Services, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of NFTs will not lose money.
(b) You are solely responsible for determining what, if any, Taxes and Gas Fees apply to your transactions through the Services. Neither Uptop nor any Uptop affiliates are responsible for determining the Taxes that apply to such transactions.
(c) Our Services do not store, send, or receive digital assets. Any transfer of digital assets occurs within the supporting blockchain and not on the Services. Transactions in digital assets may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions in digital assets shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the transaction.
(d) The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Services and the utility of NFTs and other Supported Digital Assets.
(e) There are risks associated with using Internet based digital assets, including but not limited to, the risk of hardware, software, and Internet connection and service issues, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your digital wallet. Uptop will not be responsible for any communication failures, disruptions, errors, distortions, or delays you may experience when effecting transactions involving supported digital assets, however caused, including Gas Fees paid or payable in connection therewith.
(f) 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 or value of any digital assets.
(g) The Services may rely on third-party platforms to perform transactions with respect to any digital assets. If we are unable to maintain a good relationship with such platform providers; if the terms and conditions or pricing of such platform providers change; if we violate or cannot comply with the terms and conditions of such platforms; or if any of such platforms loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and use of the Services will suffer.
(h) By accessing and using the Services, you represent that you understand the inherent risks associated with using cryptographic and blockchain-based systems, and that you have a working knowledge of digital assets. Such systems may have vulnerabilities or other failures, or experience other abnormal behavior. Uptop is not responsible for any issues with the blockchains, including forks, technical node issues, or any other issues that may result in fund losses. You acknowledge that the cost and speed of transacting with cryptographic and blockchain-based systems are variable and may increase at any time. You further acknowledge the risk that your digital assets may lose some or all of their value while they are supplied to or from the Services. You further acknowledge that we are not responsible for any of these variables or risks and cannot be held liable for any resulting losses that you experience while accessing the Services. Accordingly, you understand and agree to assume full responsibility for all of the risks of accessing and using and interacting with the Services.
15. Indemnity. You will indemnify, defend (at Uptop’s option), and hold Uptop and its affiliates and their respective officers, directors, employees, and agents (the “Uptop Indemnified Parties”), harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees (each, a “Claim”) arising out of or in any way connected with (a) your access to or use of the Services, (b) your Brand Content, or (c) your violation of these Terms. If you are a Brand, you further agree to indemnify, defend (at Uptop’s option), and hold the Uptop Indemnified Parties harmless from and against any Claims arising out of or in any way connected with any acts and omissions of the Consumers in connection with the use of the Services. You may not settle or otherwise compromise any claim subject to this Section without Uptop’s prior written approval.
16. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER UPTOP NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE
TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT UPTOP OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE AGGREGATE TOTAL LIABILITY OF UPTOP AND ITS AGENTS, REPRESENTATIVES, AND AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO UPTOP FOR USE OF THE SERVICES OR ONE HUNDRED U.S. DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO UPTOP, AS APPLICABLE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN UPTOP AND YOU.
17. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the U.S. Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 18 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Uptop are not required to arbitrate will be the state and federal courts located in the New York County, and you and Uptop each waive any objection to jurisdiction and venue in such courts.
18. Dispute Resolution.
(a) Informal Dispute Resolution. You and Uptop must first attempt to resolve any dispute, claim, or controversy arising out of or relating to these Terms, or the breach, termination, enforcement, interpretation, or validity thereof, or the use of the Services (collectively, “Disputes”) informally. Accordingly, neither you nor Uptop may start a formal arbitration proceeding for at least sixty (60) days after one party notifies the other party of a claim in writing. As part of this informal resolution process, you must deliver written notices via hand or first-class mail to us at Uptop, [insert Uptop address here]. Notwithstanding the foregoing, we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights at any time.
(b) Mandatory Arbitration of Disputes. We each agree that any Dispute will be resolved solely by binding, individual arbitration and not in a class, representative, or consolidated action or proceeding. You and Uptop agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Uptop are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(c) Exceptions. As limited exceptions to Section 18(b) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
(d) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, with provision to be made for remote appearances to the maximum extent permitted by the AAA Rules, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(e) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute is frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(f) Injunctive and Declaratory Relief. Except as provided in Section 18(c) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(g) Class Action Waiver. YOU AND Uptop AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if a Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(h) Severability. With the exception of any of the provisions in Section 18(g) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
19. General Terms.
(a) Reservation of Rights. Uptop and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services.
(b) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Uptop and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Uptop and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without Uptop’s prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null and void in its entirety. Uptop may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
(c) Notices. Any notices or other communications provided by Uptop under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(d) Waiver of Rights. Uptop’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Uptop. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
20. Contact Information. If you have any questions about these Terms or the Services, please contact Uptop at contact@uptop.xyz
