Last updated June 2023
This Agreement (the “Agreement”) governs the relationship between Immutable ZK Pty Ltd (“Immutable”, “us”, “our”, or “we”) and you (“you”, “your”, or the “Partner”) who interact with Immutable, and our products and services, including the Platform, the Protocol, and Passport (collectively, the “Services”), including for your use of the Services (as applicable). Subject to the terms and restrictions set forth in this agreement, Immutable hereby grants you a worldwide, non-exclusive, revocable, non-transferable licence to use the Services in connection with your participation in Immutable’s Partner Program.
You confirm that you have read, understood and agree to this Agreement which will thereafter form a binding legal agreement between Immutable and you. By accessing or continuing to use the Services, you continue to agree to abide by the terms and conditions of this Agreement, as updated and amended from time to time. We will notify you of material updates to this Agreement from time to time. You should read all of the terms of this Agreement, and if you do not agree with any terms and conditions in this Agreement, you should cease in your capacity as a Partner and cease using our Services (as applicable).
Other terms, conditions, and policies may apply to specific services or products, which we will tell you about through those Services, and which are also incorporated into and subject to this Agreement by reference. To the extent that any supplemental terms or any annexures to this Agreement conflict with the terms and conditions in this Agreement, the supplemental terms or the relevant annexure will prevail to the extent of such conflict with respect to your use of such Services.
Capitalised terms are as defined in clause 26 of this Agreement unless otherwise stated. Any reference to capitalised terms that are not defined in any of the annexures will have the same meaning as that defined in the General Terms and clause 26.
This Agreement comprises:
Annexure A: Required inclusions in Partner’s Platform; and
Annexure B: Passport Terms.
1. Important Information
1.1 Read this Agreement carefully before using our Services. You must first accept and understand this Agreement before you are permitted to use our Services. If you do not agree to accept the Agreement, then you must not use our Services. The following terms and conditions set out in this Agreement and any other applicable policy or guidelines posted on the Websites apply to you if you use any of the Services.
1.2 All the Services we provide are subject to the terms and conditions set out in this Agreement. Specific terms apply to certain Services as set out in the Annexures.
1.3 We reserve the right to update, modify or replace the terms of this Agreement and we will notify you of any such changes by posting a notice on one or all of the Websites and we may also send an email summarising the changes. It is your responsibility to regularly review this Agreement to ensure that you are aware of any updates or modifications. Your continued use of our Services after any changes to the terms of this Agreement will constitute your acceptance of such changes.
2. Platform Licence
2.1 Platform Licence
(a) Subject to the terms and restrictions set forth in this Agreement, Immutable hereby grants you a worldwide, non-exclusive, revocable, non-transferable, non-sublicensable, royalty-free licence to use the Platform for the Permitted Purpose (Platform Licence).
(b) You obtain no other rights to the Platform, the Services, or the Protocol other than those specified in this Agreement. For the avoidance of doubt, at no time will a Partner have any right to, and no Partner shall, sublicence or attempt to sublicence the Platform Licence.
2.2 Open source code
From time to time, Immutable may provide you with open source code or components. You acknowledge and agree that:
(a) open source components are subject to separate applicable open source licence terms, which are available on request;
(b) in addition to complying with your obligations under this Agreement, you will comply with the terms of the applicable open source licence terms if you use or intend to use any open source code or component;
(c) you are not permitted to integrate any open source code or component into any code licensed to you under the terms of this Agreement;
(d) you must not take any action or enter into any binding arrangement, contract or understanding with respect to the open source code or components that would impose an obligation on Immutable or otherwise compel Immutable to contribute any of its or its licensors’ proprietary source code or other proprietary materials to any open source repository; and
(e) Immutable shall not be liable for, and you shall indemnify Immutable in respect of, any Losses it incurs in relation to your breach of this clause and any applicable open source code licences.
2.3 Immutable Marketplace
For the purposes of this Agreement, you are deemed to be an End User when interacting with or using the Immutable Marketplace in any manner and are therefore subject to the Marketplace Terms as found in Annexure A of the Immutable Master Terms of Service.
3. Protocol Licence
3.1 Grant of Protocol Licence
(a) Immutable hereby grants you a worldwide, non-exclusive, revocable, non-transferable, non-sublicensable, royalty-free licence to use the Protocol solely for a Permitted Purpose (Protocol Licence).
(b) For the avoidance of doubt, at no time will a Partner have any right to, and no Partner shall, sublicence or attempt to sublicence the Protocol Licence.
3.2 Partners to remain liable
You remain liable for the acts and omissions of your performance under this Agreement and you must keep Immutable, its Affiliates and our Personnel indemnified at all times to the fullest extent permitted by law in respect of any Loss or Claim which we or our Affiliates or Personnel may suffer, sustain, or incur arising from, or connected with, a breach of any clause of this Agreement without limitation including any Claim or Loss incurred by us or our Affiliates in connection with your breach of the Protocol Licence.
4. Brand Asset Licence
4.1 Subject to the terms and restrictions set forth in this Agreement, Immutable hereby grants you a worldwide, non-exclusive, revocable, non-transferable, non-sublicensable, royalty-free licence to use the Brand Assets in connection with the Permitted Purpose for the Term (Brand Asset Licence) provided always that:
(a) any use of the Brand Assets by you is always using only the published colours and logo style notified from time-to-time by Immutable (including in any style guide or manual published by Immutable from time to time);
(b) any goodwill derived from your use of the Brand Assets shall inure exclusively to the benefit of Immutable and if requested, the Partner must execute such documents as are reasonably required by Immutable to confirm assignment of such goodwill;
(c) you shall not do, or omit to do, anything which may weaken, damage or be detrimental to the Brand Assets or the reputation or goodwill associated with the Brand Assets, or that may invalidate or diminish the validity of any trade mark within the Brand Assets;
(d) you shall not apply for, or obtain, whether directly or indirectly, registration of any trade or service mark, trade name or domain name in any country anywhere in the world which contains the words forming part of the Brand Assets, or which Immutable, acting reasonably, considers is substantially identical with or deceptively similar to the Brand Assets (or any of them); and
(e) if you become aware of any actual, suspected or threatened infringement of any Brand Assets, or any claim that the Brand Assets are infringing a third party’s Intellectual Property rights, you must immediately inform Immutable in writing.
4.2 Upon your receipt of Immutable’s written request, you must, at your own cost and expense, procure that your use of the Brand Assets (to the extent the Brand Assets contain or comprise any registered trade marks anywhere in the world) and all products and materials containing such trade marks used anywhere in the world by you include an acknowledgement that such use is under licence from Immutable.
4.3 Upon your receipt of Immutable’s written request, you must procure a sample of each type of use (or where appropriate photographs depicting such use) of the Brand Assets anywhere in the world where Immutable has registered trade marks in connection with the Brand Assets. After Immutable’s written approval has been obtained for such samples, you must ensure that the usage does not depart from those samples in any material aspect.
4.4 The parties agree that section 26 of the Trade Marks Act 1995 (Cth) does not apply to the Brand Asset Licence granted under this Agreement.
5. Partner Brand Assets Licence
5.1 You hereby grant to Immutable and its Affiliates a worldwide, non-exclusive, non-transferable, royalty-free licence to use the Partner Brand Assets for the sole purpose of the promotion, marketing and advertisement of your collaboration with Immutable (Licensee Brand Asset Licence).
5.2 You hereby warrant that you have the necessary rights to use and to grant the Licensee Brand Asset Licence.
6. Licences are Conditional
Other than to the extent expressly permitted in this Agreement, or if express written authorisation is provided by Immutable, the Licences are conditional upon your strict adherence to all of your obligations set out in this agreement.
7.1 Primary Sales
Subject to the Partner’s use of the Protocol to develop an Application:
(a) The Primary Sales Fee is payable in United States Dollars (USD) or USD Coin (USDC) regardless of the transaction currency or cryptocurrency you use in its transactions with End Users involving the Protocol and any Application.
(b) Should the transaction currency used by you in your transactions with End Users not be in USD, the Primary Sales Fee will be calculated by using the relevant current market exchange rate on the date of such transaction, as determined by Immutable by reference to coinmarketcap.com or such other replacement data source reasonably selected by Immutable.
(c) You agree to pay the Primary Sales Fee either by automated collection or failing that, upon being invoiced by Immutable, in accordance with the payment terms set out in such invoice.
7.2 Trading Fees (Secondary Sales)
Subject to the Partner’s use of the Protocol to develop an Application, Trading Fees will be automatically collected by the Protocol and will be payable in the same currency of the transaction on the Protocol.
7.3 Revenue Report
Subject to the Partner’s use of the Protocol to develop an Application, no more than twice per calendar year, Immutable may request that you provide a signed revenue report (if the Partner is an individual by you, or if a company signed by a director, secretary, chief executive officer or chief financial officer of the Partner), setting out all gross revenue generated by your business which is subject to the relevant Fees under this agreement (Revenue Report);
7.4 Audit Rights
Subject to the Partner’s use of the Protocol to develop an Application, no more than twice per calendar year, at Immutable’s request you must make available your books and records to a third-party auditor nominated by Immutable (Auditor) within 21 days of a request being made, for the purposes of the Auditor reviewing those books and records to verify that the Fees have been accurately calculated and paid. Immutable will require any such Auditor to enter into a confidentiality agreement with you, to your reasonable satisfaction acting in good faith to facilitate the audit and protect confidential information.
7.5 If any order form accompanying or referring to these terms or other statement of work or analogous document describes or defines fees to be paid, then those fees will fall payable under this Agreement in accordance with the due date for payment set out in such document.
8. NFT minting
8.1 No transfer of Intellectual Property
Any NFT which is minted by you using the Protocol will remain your property or of your End User(s) (if you permit End Users to mint NFTs) and nothing in this Agreement will assign, set over or transfer, or is intended to assign, set over or transfer, any Intellectual Property Rights in any NFT to Immutable.
8.2 Private keys
Immutable will not have access to, or keep any copies of any Private Keys in respect of any NFTs minted using the Protocol, nor will Immutable have any right, title or interest in the NFTs which are listed, minted or traded by you using the Protocol other than the right to the Fees set out in this Agreement.
8.3 Partner’s Acknowledgments
You acknowledge and agree that:
(a) NFTs minted using the Protocol may be able to be listed and transacted on any platform (including any Platform associated with you), or on a peer-to-peer basis;
(b) Immutable does not represent that any NFT minted using the Protocol may or can be restricted to any particular platform; and
(c) Immutable makes no representation or promise as to any value (or lack thereof) in any NFT minted using the Protocol.
9.1 Immutable Obligations
(a) Marketing activities
(1) In its sole discretion, Immutable may promote Partners in promotional materials and discussions with Game Developers; and
(2) Subject to the terms of this Agreement, Immutable will list Partners in the “Partner Directory” section of the Website.
(b) Availability of Services
For so long as Immutable chooses to maintain the Services, it will make reasonable efforts to ensure the Services are available, including hosting any part of the Protocol which requires hosting and maintaining a commercially reasonable disaster recovery plan (DRP), however, subject to clause 17.1, neither Immutable, nor any of its Affiliates or Personnel, will be liable for any Losses incurred by you or an End User if the Services are not accessible, including if this is due to factors outside of Immutable’s reasonable control.
(c) Technical Support
(1) Immutable shall use commercially reasonable efforts to provide you with an appropriate level of support, maintenance service, and uptime for the Services.
(2) In addition to any included technical support, Immutable may make available additional technical support to you in respect of the Services at an additional fee (which may be provided upon request).
9.2 Partner Obligations
(a) You will use your best efforts to:
(1) promote and market Immutable (and your relationship with Immutable) in a responsible manner in accordance with all brand and other guidelines published by Immutable on its Website and/or the Partner Hub from time to time and clause 9.3 of this Agreement; and
(2) identify for Immutable prospective Referred Developers.
(b) You must only access and use the Services as approved by Immutable under this Agreement or as expressed by us from time-to-time.
(c) You must ensure that your systems and network connections meet the minimum requirements necessary to support the access and use of the Services, as reasonably required by Immutable from time to time.
(d) You must identify yourself and your beneficial owners to Immutable, and any entity you represent.
(e) You must use reasonable endeavours to ensure that any employees or contractors who use the Services, or any Digital Asset that is offered in connection with the Services are subject to terms and conditions which are not inconsistent with the terms of this agreement.
(f) You must be responsible for the engagement and compliance of any End Users, including meeting any applicable anti-money laundering / counter terrorism financing (AML/CTF) or know your client (KYC) requirements at law, or any requirements for fair conduct in the operation of your Platform. To the extent any AML/CTF or KYC procedures are required, you must keep copies of any information required to be kept under those procedures for a period of not less than 7 years and provide copies to Immutable upon request.
(g) Subject to the Partner’s use of the Protocol to develop an Application, you must include in any End User Licence Agreement (End User Licence Agreement or EULA) terms and conditions that are substantially identical to the requirements set forth in this Agreement, including the terms set out in Annexure A to this Agreement or terms which are at least equivalent to the disclaimers, releases and limitations set out therein in favour of Immutable, and monitor and enforce compliance with the EULA with End Users, and enforce any breaches.
(h) You must remain responsible at all times for ensuring the legality, reliability, integrity, accuracy and quality of any Content. You are solely responsible for maintaining adequate security and protection of all Content which may include encryption to protect the Content from unauthorised access as well as keeping any backup of Content and securing consent from End Users to the sharing of relevant Content.
(i) You must ensure that the Content does not include any personally identifiable or Confidential Information, including private keys, usernames, passwords or bank account details.
(j) You must ensure that any Application you develop does not materially, directly or indirectly, adversely affect, impede, or otherwise hinder or disrupt the functionality, stability, security, operation or performance of the Services, including, without limitation, the Platform, the Protocol and Passport;
(k) You must ensure that any Application you develop complies with all Applicable Laws;
(l) Subject to Applicable Laws, you will immediately notify Immutable of any breaches or alleged breaches or investigations relating to Immutable during your use of the Services, and of any problems, defects, bugs or errors encountered with any aspect of the Services, as well as any suggestions or complaints you may receive in relation to interactions involving the Services.
(m) You acknowledge and agree that the Services are not intended to be and should not be taken as financial, legal or taxation advice, and you acknowledge and agree that any information we provide to you with regards to best practices in developing, through the Developer Hub or Partner Hub, should not be taken as legal, financial or taxation advice and you agree that we will not be liable for any Losses suffered by you as a result of implementing such information provided by us.
9.3 Marketing Activities
(a) You will bear any and all costs and expenses related to your marketing or promotion of Immutable and its Affiliates, and, as applicable, your applications, websites, channel or platform, or other products or services associated with your relationship with Immutable as a Partner (collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by Immutable in its sole discretion.
(b) In no event will you engage in any Partner Marketing Activities except as expressly set forth in this Agreement. In the event that you have a list of emails of which all persons on the list have expressly elected to receive emails from you (“Opt-in List”), you may make a written request to Immutable to send emails regarding the offering of Immutable and Immutable related entities to the persons on the Opt-in List (and Immutable may, in its sole discretion, permit the Partner to send such emails). In conducting all Partner Marketing Activities, the Partner will comply with all Applicable Laws, including but not limited to those relating to email marketing and “spamming”. Unless Partner has secured the applicable Game Developer’s consent first, Partner will not email any Game Developer whose email address they have received from Immutable.
(c) Without limiting the generality of Section 9.3(b), Partner will:
(1) not send any email regarding Immutable or Immutable related entities to any individual or entity that has not requested such information;
(2) always include Partner’s contact information and “unsubscribe” information in any email regarding Immutable, Immutable’s Affiliates, the Services or the Platform; and
(3) not imply that such emails are being sent on behalf of Immutable or its Affiliates.
(d) A Partner must not:
(1) engage in any marketing methods relating to Immutable or Immutable’s Affiliates, including but not limited to online and offline methods such as fax, broadcast, telemarketing, SMS/text message, email communications or video platforms without Immutable’s prior written agreement;
(2) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Immutable or its Affiliates;
(3) make any false, misleading or disparaging representations or statements with respect to Immutable or its Affiliates;
(4) prior to the termination of this Agreement in accordance with its terms, target communications to Game Developers solely on the basis of the intended recipient being a Game Developer and with the intention of migrating Game Developers away from the Services or Platform;
(5) copy, resemble or mirror the look and feel of Immutable’s Websites, the Immutable Materials or the Services or otherwise misrepresent the Partner’s affiliation with Immutable or Immutable’s Affiliates; or
(6) engage in any other practices which may adversely affect the credibility or reputation of Immutable or its Affiliates, including but not limited to using any website in any manner, or having any content on any website, that:
(A) uses aggressive or low-quality marketing, including marketing services that are unrelated to Immutable or the Partner’s services;
(B) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities;
(C) violates any Intellectual Property Rights or other proprietary rights of any third party; or
(D) violates the Protocol License.
10. Intellectual Property
10.1 Intellectual Property
(a) Nothing in this Agreement shall operate to assign, set over or otherwise transfer to you or to any third party any Intellectual Property Rights in any of the Immutable Materials, unless otherwise expressly stated.
(b) You acknowledge and agree that:
(1) The Immutable Materials are owned by, or licensed to, Immutable; and
(2) you will not copy, rent, lease, sell, distribute, or create derivative works based on the Immutable Materials, in whole or in part, by any means, except as expressly authorised by Immutable in writing; and
(3) the Immutable Materials are protected by copyright, patent, trade mark, trade secret or other proprietary rights and laws. Except as expressly authorised by us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works from any of the products offered from the Services, in whole or in part.
(c) Immutable grants you, in connection with this Agreement, a non-exclusive, non-transferable, sub-licensable, limited licence to use the Immutable Materials solely to the extent necessary for your ordinary use of the Services although you must not, except as expressly authorised by Immutable, copy, imitate, profit from, or use the Immutable Materials without our prior written consent. All right, title, and interest (including Intellectual Property Rights) in and to the Websites, any content thereon, the Services, and any and all technology or content created or derived from any of the foregoing is the exclusive property of Immutable.
(d) Immutable warrants that the Immutable Materials do not infringe the Intellectual Property Rights of any third party and Immutable indemnifies you for the whole of any Loss or Claim arising from a breach of this clause, save to the extent that the loss is caused by your act or omission.
(a) We may allow you, on or through the Services, to access and view Content.
(b) Unless otherwise indicated, we own or licence all rights, title and interest (including Intellectual Property Rights) in relation to any of the Content produced or derived from the Services. The use of the Services and your use of and access to any of the Content does not grant or transfer to you any rights, title, or interest in relation to Content.
(c) You must not, without our prior written consent or the owner of the Content (as applicable) or except as expressly permitted by this Agreement:
(1) copy or use, in whole or in part, any Content;
(2) reproduce, reverse engineer, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content designated as paid, exclusive or non-shareable content to any third party; or
(3) breach any Intellectual Property Rights connected with the Services, including by altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website, or creating derivative works from the Content.
(d) Subject always to your compliance with this Agreement, we grant you a non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use the Services, and access and view any Content for personal use, and any other purpose contemplated by this Agreement, in accordance with this Agreement. All other uses are prohibited without Immutable’s prior written consent.
(e) You grant Immutable and its Affiliates a non-exclusive, perpetual, irrevocable, worldwide, royalty free, sub-licensable and transferable right and licence to use, view, distribute, communicate, copy, store, modify and exploit in any manner the Content to provide the Services and promote the Services in any media, marketing or promotional material.
(f) You agree that you are solely responsible for all Content that you make available on or through the Services.
(g) You represent and warrant that:
(1) you are either the sole and exclusive owner of all Content that you make available on or through the Services or that you have all rights, licences, consents and releases that are necessary to grant to us the rights in such Content as contemplated by this Agreement; and
(2) neither the Content, nor the posting, uploading, publication, sending or receiving of the Content or our use of the Content on, through or by means of our 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.
(h) Despite anything to the contrary, to the maximum extent permitted by law, you agree to indemnify us and hold us harmless in respect of any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with the Content you make available on or through the Services as a result of a breach of Intellectual Property Rights.
(i) The Content is not comprehensive and is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and is not advice. To the extent permitted by law, we make no representations or warranty regarding the Content. The Content is subject to change without notice. We do not undertake to keep any part of the Services up-to-date and we are not liable if any Content is inaccurate or out-of-date.
You must not use the Services or otherwise engage in any activities (including Partner Marketing Activities) in any way which:
(a) seeks to pre-fetch, cache index, copy, re-utilise, extract, incorporate, store (including in a database) or otherwise utilise any of the Services in a way which would effectively circumvent any part of the Services or any automated Fee calculation or collection, to take steps which would expose any part of the Services to any viruses or other harmful program;
(b) seeks to compromise, break or circumvent any technical processes or security associated with the Services;
(c) is intended to be, or is part of, an effort to build a similar product or competitive product to any of the products offered under the Services;
(d) promotes violence or discrimination or is, in the reasonable opinion of Immutable, misleading or promotes misinformation;
(e) breaches any legal duty owed to a third party;
(f) is threatening or abusive or likely to harass, upset, embarrass or annoy another person;
(g) gives the impression that your conduct originates from Immutable or is approved by Immutable;
(h) is beyond the Permitted Purpose;
(i) would have the effect of reselling the services and functions which the Services provide other than as permitted via this agreement;
(j) publishes or seeks to disseminate any defamatory, obscene or offensive material;
(k) infringes the intellectual property rights of another person, or which infringes any rights in the Brand Assets or permits any infringement of rights by an End User of the Brand Assets;
(l) promotes illegal activity;
(m) breaches any Applicable Law; or
(n) in Immutable’s determination, at our sole discretion, acting reasonably, is undesirable.
12.1 Confidential Information
(a) Each party acknowledges that it may receive access to Confidential Information (Receiving Party) of the other party (Disclosing Party) pursuant to this Agreement.
(b) The Receiving Party will not, and must ensure that each member of the Receiving Party’s Personnel do not, use the Confidential Information for any purpose other than strictly for the purposes of complying with the Receiving Party’s obligations, or exercising the Receiving Party’s rights, under this Agreement.
(c) The Receiving Party will ensure that the Receiving Party, and each member of the Receiving Party’s Personnel, will not disclose or permit the disclosure of the Confidential Information to any person other than to the extent the Receiving Party can prove:
(1) the disclosure is to a member of the Receiving Party’s Personnel who requires the Confidential Information for the purpose of performing the Receiving Party’s obligations under this Agreement, is aware of the Receiving Party’s obligations under this clause 12 and has agreed to comply with the Receiving Party’s obligations under this clause 12 as if the person was a party to this Agreement;
(2) the disclosure is in accordance with the Disclosing Party’s specific and prior written consent; or
(3) the disclosure is required by law.
(d) The Receiving Party and its Personnel shall use Confidential Information only to perform its obligations under this Agreement and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. The receiving Party shall be fully responsible for any breach of this Agreement by its Personnel.
Without prejudice to any other rights or remedies that a Disclosing Party may have, the Receiving Party acknowledges that damages alone would not be an adequate remedy for any breach or threatened breach by the Receiving Party of this clause 12 and accordingly, the Disclosing Party shall be entitled without proof of special damage to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of this clause.
13.2 We may disclose that information to third party service providers who help us deliver our Services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, third party payment processors and our business partners) or as required by law. If you do not provide this information we may not be able to provide you and End Users with access to the Services. In certain circumstances, we may disclose your Personal Information to third parties located, or who store data, outside Australia.
(a) how we store and use Personal Information;
(b) how you can access and seek correction of Personal Information;
(c) how you can make a privacy-related complaint; and
(d) our complaint handling process.
(a) You have notified the End User of the provision of Personal Information;
(b) Immutable may collect the Personal Information of the End User from you; and
(c) the End User has consented to your provision of the Personal Information to us.
14. Warranties and representations
14.1 Partner warranties
You represent, warrant and agree that:
(a) you will not use the Services, including the Content, in any way that competes with our business;
(b) there are no legal restrictions preventing you from entering into this Agreement;
(c) all information and documentation that you provide to us in connection with this Agreement are true, correct and complete;
(d) we provide the Services, and any software operating parts of the Services, including the Immutable Materials on an “as is” and “as available” basis and that, to the maximum extent permitted by law, we make no representations or warranties regarding the software, including that:
(1) the software is of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement or quiet enjoyment;
(2) the software, including any Back-End Infrastructure or Smart Contracts, will be uninterrupted, secure, private, error free or free from harmful components or that any error will be fixed in the API;
(3) any data transmitted to the software by you will be secure or not otherwise lost or altered; or
(4) we are not liable for any harm or damage suffered as a result of using the software in respect of trading, transacting, loss of any asset, including in respect of any Consequential Loss, whether due to a security breach or cyber attack, or electronic or technological failure, registration errors or for any other reason;
(e) you are sufficiently experienced and educated to make decisions regarding the use of Digital Assets via the Protocol, including sufficient experience in dealing with and storing Digital Assets and blockchain systems and Smart Contracts generally;
(f) that you have all necessary experience, resources, certificates, licences, permits and approvals to use Digital Assets for the Permitted Purpose, and to meet the Partner’s obligations under this Agreement and all Applicable Laws;
(g) that in operating any Platform you will use commercially reasonable efforts to prevent market manipulation by End Users including market rigging or false trading;
(h) that in relation to your use of the Protocol and any other Intellectual Property made available to you by Immutable, you will not misuse those assets for an improper purpose;
(i) that you are, to the best of your knowledge (having made all reasonable inquiries), not involved in any capacity in any material claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry, mediation or arbitration (nor which are pending or threatened) relevant to Immutable’s provision of the Services and/or which may adversely affect Immutable’s reputation, that has not been disclosed to Immutable, to the extent you are legally able to do so;
(j) that as far as you are aware, there are no facts, circumstances or other information which both:
(1) you have not fully and fairly disclosed to Immutable in a manner and to the extent that would allow Immutable to make a reasonable assessment of those facts, matters and circumstances prior to the commencement of these terms; and
(2) is of such nature and materiality that a reasonable person, had it been made aware of such facts, matters and circumstances, could not reasonably be expected to make the Services and the Licences available to you for the Permitted Purpose.
(k) you understand that the price of Digital Assets are volatile, and there are risks associated with purchasing Digital Assets including but not limited to, the risk of purchasing counterfeit assets, mislabelled assets, assets that are vulnerable to metadata decay, assets on Smart Contracts with bugs, and assets that may become non-transferable. You acknowledge and accept such risks;
(l) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Protocol or Platform is or will be fit or suitable for your particular purposes) or Immutable’s Partner Program, unless expressly stipulated in this Agreement; and
(m) you will be responsible for the use of any part of the Services and any Partner Marketing Activities carried out by you as part of Immutable’s Partner Program, and you must not use or permit another person to use any part of the Services: (i) to break any law (including participating in money laundering, terrorist financing, market manipulation or wash trading) or infringe any person’s rights (including Intellectual Property Rights); (ii) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; (iii) to develop, utilise, or disseminate any software or interact with the Services in any manner that could harm, or impair it; (iv) use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorised by us to access the Services, extract data or otherwise interfere with or modify the rendering of the Services or functionality; or (v) in any way that damages, interferes with or interrupts the supply of the Services.
15. Acknowledgement of risk
15.1 Risk of cryptographic systems
(a) By using anything associated with the Services, or interacting with the Services you represent that you understand the inherent risks associated with cryptographic systems and warrant that you have an understanding of the usage, risks, potential bugs based on novel technology (where applicable), and intricacies of native cryptographic tokens, like Ether (ETH) and Bitcoin (BTC), Smart Contract based tokens such as those that follow the Ethereum Token Standard, including but not limited to ERC-20 or ERC-721 or ERC-1155 tokens as well as any other blockchain-based or Digital Asset related system that you may encounter by or through your use of the Services.
(b) You acknowledge and agree that cryptography is a progressing field. Advances in code cracking or technical advances such as the development of quantum computers may present risks to Smart Contracts and cryptocurrencies which could result in the theft or loss of your cryptographic tokens or property, among other potential consequences. By using the Services you acknowledge and agree to undertake these risks.
15.2 Risk of regulatory and tax consequences
There is a risk that the regulation and laws in respect of the Services and in respect of any tax actions in relation to the Services will change or be interpreted differently over time which may lead to Immutable not being able to continue to offer the Services in the same way or, in an extreme event, be unable to provide you with continued access.
15.3 Application security
You acknowledge and agree that the Services and related applications include software code and are subject to flaws and acknowledge that you are solely responsible for evaluating any Smart Contract code provided by the Services, Content, and the trustworthiness of any third-party websites, products, Smart Contracts, or Content you access or use through the Services. You further expressly acknowledge and agree that applications written on blockchain networks such as Ethereum applications can be written maliciously or negligently and that Immutable cannot be held liable for your interaction with such applications and that such applications may cause the loss of property or identity. This warning and others later provided by Immutable in no way evidence or represent an on-going duty to alert you to all of the potential risks of utilising the Services.
15.4 Software updates and features
We may, in our sole discretion, but are not obliged to, make updates to the Services, including the software, and remove features present in the Services at our sole discretion.
16. External services/links
16.1 If you engage in any external services or links by third parties through the Services you may be subject to the third party’s own terms and conditions.
16.2 We will not be liable for the performance, errors or omissions of third parties or decentralised networks such as, by way of example and not limitation: blockchain networks (whether private/permissioned or public), courier companies, national postal services and other delivery, telecommunications and other companies not under our reasonable control, and third parties providing services to the blockchain industry generally, such as, by way of example and not limitation, companies and other entities providing processing and payment or transaction services (including “Layer 2” or similar “roll-up” or optimisation services), banking partners, custody services, market making services and/or third party pricing services and decentralised blockchain networks such as, by way of example and not limitation, the blockchain(s) upon which any Service is offered under this Agreement.
16.3 If you engage in any transaction involving a third party, third party platforms, or blockchain digital wallets which are not associated with us, that transaction may be subject to transaction fees charged by that third party network. Should any transfer be conducted using a marketplace we or our Affiliates provide, then the Fees and charges may apply to those transactions payable to us at the time of the transaction.
16.4 To the extent that you use the Services which contain third party Intellectual Property Rights, you acknowledge and agree that:
(a) you will not have the right to use that third party Intellectual Property Rights except as provided for in the third party terms;
(b) you might be subject to additional restrictions regarding the use of that third party Intellectual Property Rights; and
(c) you will be responsible for complying with any restrictions regarding the use of that third party Intellectual Property Rights.
17. Limitations on liability
17.1 Limitation of liability – “as is”
The Services and the Platform are provided “as is”. In the absence of any material breach of this Agreement by us or the gross negligence, fraud or wilful misconduct by us when providing the Services to you under this Agreement, we will not be liable to you on account of anything done, omitted or suffered by us when providing the Services to you under this Agreement, including in respect of a Force Majeure Event.
17.2 No representations or warranties
Immutable makes no representations or warranties regarding the Platform, the Protocol, the Services, the Immutable Partner Program or any other Immutable service or product, other than those explicitly stipulated in this Agreement.
17.3 Compliance with laws – no monitoring responsibilities
(a) We will have no Liability or responsibility for your compliance with Applicable Laws governing your use of the Services. Further, you are solely responsible for compliance with all applicable requirements of any Applicable Laws relating to the Application, your use of the Services, any Partner Marketing Activities carried on by you and/or your business operations generally.
(b) You further acknowledge that neither we, our Affiliates nor any of our Personnel is, and will not be, by virtue of providing the Services to you, an advisor, fiduciary or trustee of any kind to you.
17.4 Liability cap
To the extent permitted at law and except with respect to the parties’ indemnification obligations in clauses 2.2(e), 3.2, 10.2(h) and 20, the liability of the parties, and any of their Affiliates and Personnel, in contract, tort or otherwise (including negligence) arising directly out of or in connection with this Agreement and/or the provision of the Services or performance or observance of its obligations under this agreement and every applicable part of it shall be limited in aggregate to:
(a) during the period which is the first 12 months after this Agreement is signed, US$100,000; and
(b) after that period, US$250,000.
17.5 No liability for Consequential Loss
Neither party or any of their Affiliates, Personnel, or third party suppliers, will be liable for any Consequential Loss.
18.1 Nothing in this Agreement excludes, restricts, or modifies or purports to exclude or restrict any mandatory conditions, warranties and undertakings arising under Applicable Laws. Our Liability for death or personal injury arising from our negligence for any condition, warranty, right or liability, implied in this Agreement by law cannot be excluded. The Services are provided to you strictly on an “as is” and “as available” basis. You acknowledge that:
(a) your use of the Services is at your own risk and is also subject to the terms and conditions of the Websites, products, and services of third parties, including our Affiliates;
(b) prior to accepting this Agreement, you have been given a reasonable opportunity to examine and satisfy yourself as to the contents of this Agreement; and
(c) at no time prior to accepting this Agreement have you relied on our skill or judgement, and you acknowledge that it would be unreasonable for you to do so.
18.2 To the maximum extent permitted by law, we expressly exclude on our behalf and our third party suppliers, all warranties and conditions which are not guaranteed by law, including merchantability and fitness for a particular purpose and liability for Consequential Loss of any kind in accordance with clause 17.5, or damage caused by breach of any express or implied warranty or condition. Immutable further disclaims all representations and warranties, express or implied, that the Services satisfy all of your requirements and or will be uninterrupted, error-free or free from harmful components.
18.3 Except as expressly stated otherwise in this Agreement and to the maximum extent permitted by law, our liability under any term, guarantee, condition or warranty (including, without limitation, any term, guarantee, condition or warranty of merchantability, acceptable quality, fitness for any particular purpose or fitness for disclosed result) under any Applicable Laws or implied into this Agreement by any Applicable Laws, and our liability under any other right or remedy given under any Applicable Laws or implied into this Agreement by any Applicable Laws (Statutory Warranties and Liabilities) are hereby excluded. Where, notwithstanding any other provision of this Agreement, we are liable for breach of any Statutory Warranties and Liabilities, and excluding or modifying the application of, or exercise of, or liability under, such Statutory Warranties and Liabilities would contravene any Applicable Laws or cause this clause to be void, our liability for any breach of such Statutory Warranties and Liabilities or liability under such Statutory Warranties and Liabilities will be limited, at our option, to one or more of the following:
(a) if the liability relates to goods:
(1) the replacement of the goods or the supply of equivalent goods; or
(2) the repair of such goods; or
(3) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(4) the payment of the cost of having the goods repaired; and
(b) if the liability relates to services:
(1) the supplying of the services again; or
(2) the payment of the cost of having the services supplied again; and
you agree that this limitation of liability is reasonable in the circumstances.
By engaging in the Services, you agree to release us, our Affiliates and Personnel and our third party suppliers from any Claims to the fullest extent permitted by law in respect of any Loss or Claim how so ever arising including in respect of your use of the Services and including any Claim for Consequential Loss of any kind and Loss relating to delays, inaccuracies or incomplete services caused by us or our third party suppliers.
20. Indemnity for breach of third party intellectual property rights
You must indemnify us, our Affiliates and our Personnel and keep us and our Personnel indemnified at all times to the fullest extent permitted by law in respect of any Loss or Claim which we or our Affiliates or our Personnel may suffer, sustain, or incur arising from, or connected with, a breach of any clause of this Agreement by you without limitation including any Claim by a third party or Loss incurred by us in connection with your breach of any third party Intellectual Property Rights.
21. Term and Termination
This Agreement commences on the earlier of you clicking on “I agree” (or a similar box or button) in relation to this Agreement or otherwise being granted access to use the Services, the Partner Hub, you agreeing to any other agreement that references the terms contained herein, and continues until this Agreement is terminated (Term).
Immutable reserves the right to suspend your access to the Services if Immutable has reasonable grounds to believe (acting in good faith) that you are in breach of a material term of this Agreement and such breach has not been cured by you (if curable) within five days of written notice of the breach from Immutable. If the breach is cured, Immutable shall restore your access to the Services.
21.3 Termination for convenience
Unless otherwise specified in this Agreement, any Party may terminate this Agreement at any time, effective immediately upon notice to the other Party.
21.4 Termination with cause
This Agreement may be terminated with immediate effect:
(a) By us if any of the warranties set out in clause 14 are breached;
(b) By either party if the other party commits any material breach of its obligations under this Agreement, and fails to remedy such breach (if capable of remedy) within 30 days of receipt of notice from the non-defaulting party requiring it to do so; or
(c) Where Immutable or you are subject to an Insolvency Event.
21.5 Effect of termination
Termination of this Agreement does not affect the rights and Liabilities of the parties which have accrued prior to the termination. If you are in breach of this Agreement
22.1 The Purchase Price for any transaction effected through the Services will be considered to be inclusive of any applicable Sales Tax.
22.2 If any additional Sales Tax is applicable by virtue of any Applicable Law in Your Jurisdiction, you agree to pay such amount as is payable on behalf of us, and inform us of that payment forthwith.
22.3 If you are a resident of Australia you must declare your residency during the account set up process for the purposes of determining applicable Sales Tax.
22.4 Any reference to a cost or expense incurred by a party in these Services excludes any amount of Sales Tax forming party of the relevant cost or expense when incurred by the party for which the party can claim an input tax credit.
22.5 Each party is solely responsible for any taxation which arises as a result of using the Services including capital gains or income tax and you shall have no Claim for any Loss against us in respect of any taxation amounts you are due to pay howsoever such amounts arise.
23. Sanctions laws and regulations
23.1 You are prohibited from using the Platform, Developer Hub, Partner Hub, the Services, participating in the Immutable Partner Program and/or Partner Marketing Activities if you, or your Digital Wallet address is, or you are an agent or acting on behalf of any person listed on, any sanctions list or equivalent maintained by the United National Security Council (UNSC), the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC) and/or the Australian Government Department of Foreign Assets and Trade (DFAT) or any other applicable regime.
23.2 We may, at our sole and absolute discretion, implement controls to restrict access to the Services in any Restricted Jurisdictions. We may block or geo-block persons or Users located in certain Restricted Jurisdictions from accessing or using the Services. You acknowledge, agree and understand that if you are located in a Restricted Jurisdiction, you are not permitted to access or use the Services or participate in the Immutable Partner Program and/or Partner Marketing Activities, even if you are located there temporarily, and restrictions may be applied to attempts to access the Services accordingly. You acknowledge that this may impact your ability to interact with the Services and/or the Protocol, including your ability to register, make deposits, submit orders, participate in staking, submit trades and make transfers.
23.3 We are not responsible for any Losses which may arise because you are not able to interact with or access the Services because of any action taken under this clause 23.
24.1 Governing law
This Agreement is governed by the laws of New South Wales and Australia. Subject to clause 24.2, the parties agree to submit any dispute or Claim arising out of, relating to or in connection with this Agreement and the Services, including its subject matter, or formation, existence, validity or termination, to the exclusive jurisdiction of the courts of New South Wales and the New South Wales division of the Federal Court of Australia and the Courts of Appeal from them.
Any dispute or Claim arising out of, relating to or in connection with this Agreement and the Services, including its subject matter, or formation, existence, validity or termination, other than a claim for interim or injunctive relief, will be resolved by binding arbitration. Senior representatives of the parties with authority to settle the dispute will, within five days of a written request from one party to the other, meet in good faith to resolve the dispute. If the dispute is not wholly resolved at the meeting, the dispute shall be resolved by arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Rules. The seat of the arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.
(a) Unless a provision of this Agreement expressly states otherwise, a notice, consent, approval, waiver or other communication (Notice) in connection with this Agreement must be in writing and in English and,
(1) by us, may be given: (i) via the Websites; (ii) sending a message to the email address associated with the Partner; or (iii) using other public communication channels;
(2) by you, may be given by sending a message to email@example.com.
(b) Any Notice will be deemed to be received within 24 hours of being sent to your nominated email or published online.
We reserve the right to amend this Agreement from time to time in our absolute discretion. Amendments will be effective as soon as such changes are notified to you from time to time in accordance with clause 24.3 above or accepted by you accessing or continuing to use the Services.
Where there is inconsistency between this Agreement and other content displayed as part of the Websites, the content of this Agreement will prevail to the extent of any inconsistency.
24.6 Force Majeure
We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstances beyond our reasonable control (including but not limited to epidemics, pandemics, blockchain congestion or attacks, Government sanctions or orders, whether known or unknown at the time the parties enter into this Agreement) (Force Majeure Event).
A provision of this Agreement or a right created under it may not be waived except in writing signed by the party granting the waiver.
24.8 Exercise of a right
A party may exercise a right at its discretion and separately or together with another right. If a party exercises a single right or only partially exercises a right, then that party may still exercise that right or any other right later. If a party fails to exercise a right or delays in exercising a right, then that party may still exercise that right later.
24.9 Remedies cumulative
The rights and remedies provided in this Agreement are cumulative with and not exclusive of the rights and remedies provided by law independently of this Agreement.
24.10 No merger
The rights and obligations of the parties (including under the warranties) will not merge on completion of any transaction under this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.
(a) This Agreement is for the benefit of the parties and their successors and assigns. The parties and their successors and assigns are bound by this Agreement.
(b) We may assign or subcontract our rights or obligations under this Agreement without your consent, including at any time.
If any provision of this Agreement is void, voidable, unenforceable, illegal, prohibited or otherwise invalid in a jurisdiction, in that jurisdiction the provision must be read down to the extent it can be to save it but if it cannot be saved by reading it down, words must be severed from the provision to the extent they can be to save it but if that also fails to save it the whole provision must be severed. That will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction where it is not invalid.
24.13 Entire agreement
This Agreement constitute the entire agreement of the parties in respect of the subject matter of this Agreement and supersedes all prior discussions, representations, undertakings and agreements. None of our agents or representatives are authorised to make any representations, conditions or agreements not expressed by us in writing nor are we bound by any such statements.
24.14 Further assurances
Each party must, at its own expense, do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including but not limited to the execution of documents.
Nothing in this Agreement constitutes the parties as partners or agents or fiduciaries of the other and no party has any authority to bind the other legally or equitably save as expressly stated in this Agreement.
In this Agreement, a reference to the awareness or knowledge by you is a reference to the actual knowledge, information and belief you have as at the date of any transaction taking place pursuant to this Agreement.
Each party must pay its own fees, costs and expenses incurred by it incidental to or in connection with the negotiation, preparation, execution, delivery and completion of this Agreement and the transactions contemplated by this Agreement including without limitation its own legal, accounting and corporate advisory fees.
The following rules of interpretation apply in this Agreement unless the context requires otherwise:
(a) singular includes plural and plural includes singular;
(b) reference to legislation includes any amendments to it, any legislation substituted for it, and any statutory instruments issued under it and in force;
(c) reference to a person includes a corporation, joint venture, association, government body, firm and any other entity;
(d) reference to a party includes that party’s personal representatives, successors and permitted assigns;
(e) references to time mean that time in New South Wales, Australia;
(f) if a party comprises two or more persons:
(1) reference to a party means each of the persons individually and any two or more of them jointly;
(2) a promise by that party binds each of them individually and all of them jointly;
(3) a right given to that party is given to each of them individually;
(4) a representation, warranty or undertaking by that party is made by each of them individually;
(g) headings do not affect interpretation;
(h) another grammatical form of a defined expression has a corresponding meaning;
(i) a provision must not be construed against a party only because that party put the provision forward; and
(j) a provision must be read down to the extent necessary to be valid; if it cannot be read down to that extent, it must be severed.
In this Agreement:
Affiliates means as to any corporation, partnership, limited liability company, association, trust, unincorporated entity or other legal entity (each a Person), any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the specified Person. The term “control” as used herein (including the terms controlling, controlled by, or under common control with) shall mean possession, directly or indirectly of at least fifty percent (50%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation), or the power to direct or cause the direction of the management or policies of an entity whether through ownership of securities, by contract or otherwise;
API means application programming interface;
Applicable Law means any mandatory statute, law, regulation, ordinance, rule, determination, judgement, rule of law, order, decree, permit, requirement, or any provision of condition or any permit, license or other authorisation issued by any governmental and/or judicial authority having or asserting jurisdiction over the matter in question, whether now or hereafter in effect, in any jurisdiction, that is applicable to a party;
Application means any program, or group of programs, that is being, or had been developed, adapted, created, or designed, and deployed, or intends to be deployed, by you using or in connection with, the Developer Hub.
Back-End Infrastructure means our software, hardware, and networking architecture supporting the APIs and SDKs;
Brand Assets means the names “Immutable X” and “Immutable zkEVM” and the associated logos used by Immutable in connection with the Immutable brand;
Business Day means any day except a Saturday or a Sunday or other public holiday in New South Wales, Australia;
Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, however arising whether present, unascertained, immediate, future or contingent, whether based in contract, tort, statute or otherwise and whether involving a third party or otherwise and where and to the extent the context permits, includes all associated Loss;
Confidential Information means:
(a) information, in any form, relating to a party’s business including but not limited to any products, fees, markets, operations, processes, techniques, technology, forecasts or strategies; but not:
(1) information in the public domain other than because of a breach of this Agreement; or
(2) information already known to a party prior to the disclosure by the other party;
Consequential Loss means any loss recoverable at law which is:
(a) as a result of a breach of this Agreement and:
(1) the loss does not arise naturally (that is, according to the usual course of things) from the breach; or
(2) the loss was not reasonably in the contemplation of the parties at the time of making this Agreement, as the probable result of any breach of it; or
(b) a loss of opportunity, expectations, reputation or goodwill;
(c) a loss of revenue or profits;
(d) a loss of use and/or loss or corruption of data; or
(e) a loss of anticipated savings or business, and any costs or expenses incurred in connection with the foregoing.
(a) listings featuring Digital Assets posted on our Marketplace by you; and
(b) other content and information posted by you through the Services;
Developer Hub means the Immutable interface and portal through which Developers engage with the Immutable ecosystem and build on our platform;
Digital Assets mean cryptographically secured tokens (whether fungible or non-fungible) recorded on a public blockchain;
Digital Wallet means the applicable “Metamask” location, public key or wallet address, account or storage device which we choose to support through use of the Services;
End User means any third party user and/or otherwise interfacing with an Application in connection with your product offering, including via any platform operated by you.
Fee means the fees or charges to be paid by you to us, in the course of providing the Services, and as further described in clause 7;
Force Majeure Event has the meaning given in clause 24.6;
Game Developer means an individual or business that uses the Service to develop, test and distribute Applications;
Immutable Materials means the APIs, SDKs, Back-End Infrastructure, the Platform and documentation;
Insolvency Event means for a given person, that:
(a) such person admits in writing its inability to pay its debts generally as they become due, or makes a general assignment for the benefit of creditors; or
(b) any proceeding is instituted by or against such person seeking to adjudicate it bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property, or
(c) such person generally does not pay its debts as such debts become due and, in the case of any proceeding instituted against such person, such proceeding remains unstayed for more than thirty (30) days or an order or decree approving or ordering any of the foregoing shall be entered; or
(d) such person takes any corporate action to authorize any action described in subparagraph (a) to (c).
Intellectual Property Rights means any and all present and future intellectual property rights, conferred by statute, at common law or in equity and wherever existing, including:
(a) patents, inventions, discoveries, designs, copyright, moral rights, trade marks, service marks, trade names, brand names, business names, product names, domain names or rights in designs, art, images, drawings, know how, product names, trading styles, get-up, processes, methodologies, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
(b) any application or right to apply for registration of any of these rights or other rights of a similar nature arising or capable of arising under statute or at common law anywhere in the world;
(c) other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation 1967;
(d) any registration of any of those rights or any registration of any application referred to in paragraph (2); and
(e) all renewals and extensions of these rights;
Liability means all costs and expenses, charges, losses, damages, penalties and liabilities of any kind whatsoever including, without limitation, legal costs and expenses (on a full indemnity basis);
Licence includes the licences granted by Immutable under the Agreement or any of them, including, without limitation, the Protocol Licence, the Passport Licence and Brand Assets Licence;
Listing means a Digital Asset that is listed for sale by a user on the Marketplace;
Loss includes any loss, damage, cost, charge, liability or expense (including legal costs and expenses) and Consequential Loss of any kind;
Marketplace means the Immutable software platform or software available at market.immutable.com and via other channels or addresses which permits the transfer, purchaser or sale of Digital Assets;
NFT means non-fungible token;
Partner Data means any information transmitted to the APIs by you or by an End User of your product offering, including via any platform operated by you;
Partner Hub means the Immutable interface and portal through which Partners engage with the Immutable ecosystem and make referrals to Immutable;
Platform means the interface hosted by us and integrated into the Protocol, and which includes the Developer Hub and the Partner Hub;
Permitted Purpose means using the Services to create, design, develop, test and/or deploy one or more Applications on the Protocol or the Developer Hub;
Personnel means any employee, contractor, subcontractor, agent, partner, shareholder, ultimate beneficial owner, director or officer of a party;
Primary Sales means the gross value of sales:
(a) from the first time that a Digital Asset is sold to an End User in connection with an Application; or
(b) from the time that a Digital Asset is issued to an End User in connection with an Application; or
(c) generated from any experience which involves the subsequent minting or first recognition of an Digital Asset in connection with an Application,
made in connection with your use of the Protocol and regardless of any burn mechanisms that may apply to the Digital Assets sold or issued by you . For the avoidance of doubt,
Primary Sales includes Digital Asset sales which occur on a layer 1 blockchain but which involve subsequent recognition of that Digital Asset on the Protocol.
Primary Sales means the gross value of sales:
(a) from the first time that a Digital Asset is sold to an End User in connection with an Application; or
(b) from the time that a Digital Asset is issued to an End User in connection with an Application; or
(c) generated from any experience which involves the subsequent minting or first recognition of an Digital Asset in connection with an Application,
made in connection with your use of the Protocol and regardless of any burn mechanisms that may apply to the Digital Assets sold or issued by you . For the avoidance of doubt, Primary Sales includes Digital Asset sales which occur on a layer 1 blockchain but which involve subsequent recognition of that Digital Asset on the Protocol.
Primary Sales Fee means 2% of Primary Sales or as otherwise amended by Immutable from time-to-time.
Protocol means the layer 2 Ethereum Blockchain software known by the style of “Immutable X” and “Immutable zkEVM” and incorporating the APIs, SDKs, Smart Contracts, and Back-End Infrastructure;
Purchase Price means the amount for the purchase (or pre-purchase) of any Digital Asset or bundle containing a Digital Asset;
Referred Developer means any unique developer that:
(a) has registered for a Developer Hub account and received a licence to the Services from Immutable;
(b) has not previously been introduced to or sourced by Immutable; and
(c) was introduced by a Partner that actively promoted the Services.
Restricted Jurisdiction means a jurisdiction where you or End Users are restricted from using the Services in accordance with Applicable Law, including but not limited to those promulgated by the UNSC, OFAC or DFAT;
Sales Tax means any form of value-added tax or similar sales tax that may be deemed to be applicable by a relevant tax authority regarding a particular dealing or transaction;
SDK means software development kit;
Secondary Sales means any sale of a Digital Asset using the Platform after the Primary Sale of the Digital Asset and which involves the transfer of value and ownership in the Digital Asset.
Smart Contract means a system of software code running on the Ethereum blockchain, the Protocol or any other compatible blockchain that automatically executes part or all of a transaction;
Term means the period during which the Services are provided you;
Trading Fee means 2% of Secondary Sales using the Platform or as otherwise amended by Immutable from time-to-time, paid by the buyer in a Secondary Sale.
Your Jurisdiction means the country or state where you are ordinarily resident or from which you enter into any agreement with us.
Annexure A – Required inclusions in Your Platform
The services provided by Immutable including, without limitation, the Platform, the Protocol, and Passport, (the Services) are provided “as is”. Except to the extent that any statutory rights apply which cannot lawfully be excluded, limited or waived, Immutable:
(a) makes no representations or warranties of any kind, whether express, implied, statutory or otherwise to End Users regarding the Services; and
(b) disclaims all warranties, including any implied or express warranties provided to End Users:
(1) of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement or quiet enjoyment; or
(2) that the Services, including any Back-End Infrastructure or Smart Contracts will be uninterrupted, secure, private, error free or free of harmful components or that any error will be fixed in the Services;
(3) that any data transmitted to the Services will be secure or not otherwise lost or altered; and
(4) disclaims all liability for any harm or damage caused to any End User by any third party hosting provider.
You must release, and must procure that all End Users agree to release Immutable, its Affiliates and its Personnel, and Immutable’s suppliers and contractors and their Personnel from any liability or responsibility whatsoever relating to your or your End User’s use of the Services, including in respect of trading Digital Assets via the Services, including for any loss of a Digital Asset, digital assets or tokens, and including in respect of any Consequential Loss, whether due to security breach or cyber attack, or electronic or technological failure, registration errors or for any other reason (End User Release).
3. Limitation of Liability
To the extent permitted at law, and to the extent the End User Release is found not to limit liability for any reason, the liability of Immutable, our Affiliates and any of its Personnel, in contract, tort or otherwise (including negligence) arising directly out of or in connection with this agreement and/or the provision of the Services or performance or observance of its obligations under this agreement and every applicable part of it shall be limited in aggregate to a resupply or replacement of the services or goods or the cost of repeating the provision of the services or replacing the relevant goods or of acquiring their equivalent.
4. No liability for Consequential Loss
To the maximum extent permitted at law, in no event shall Immutable be liable to you or your End Users for any Consequential Loss however arising.
Annexure B – Passport Terms
1.1 These Passport terms and conditions (Passport Terms) govern the relationship between Immutable zkEVM Pty Ltd (we, us or our) and you (you or your, or the Partner). By using, embedding, integrating and/or otherwise distributing Passport as part of an Application to End Users (collectively referred to in these Passport Terms as your “use” of Passport), you agree to abide by these Passport Terms as updated and amended from time to time, and if you do not agree with any of the Passport Terms, you must cease using Passport.
1.2 To the extent that these Passport Terms conflict with any other applicable terms, these Passport Terms will prevail.
1.3 To the extent that you access or use Passport as an End User, you agree to abide by the Passport Terms applicable to End Users as updated and amended from time to time and which are available here.
1.4 Passport is a non-custodial wallet and authentication solution for End Users and comprises the Passport SDK, web application or mobile application. Passport operates on blockchain technology and is underpinned by public and private key cryptography. Passport may be embedded, integrated and distributed by you pursuant to these terms as a third party service (Third Party Service), such as a software application (e.g. a game) built on the Immutable Platform. Before you use, embed, integrate or otherwise distribute Passport you should read the documentation explaining how to use Passport and associated services.
2. Passport Licence
Immutable hereby grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable right to embed and distribute Passport to End Users for a Permitted Purpose (the Passport Licence). For the avoidance of doubt, at no time shall a Partner sublicence or seek to sublicence any licence received under this Agreement in respect of Passport.
3.1 You acknowledge and agree that:
(a) we provide Passport solely on a proprietary basis of our own account and if we transact with you or any End User, we do so solely on a bilateral basis and subject to the Passport Terms applicable to End Users;
(b) Passport is a non-custodial wallet solution and we do not take custody of Digital Assets or any other assets in providing the Passport service;
(c) we are not providing a financial product, financial service, financial advice or other regulated service to you or any End User;
(d) we are not providing and will not provide fiduciary, advisory, brokerage, exchange, custody, trust or other similar services to you or any End User;
(e) you are solely responsible for any decision to use, embed, integrate or otherwise distribute Passport to End Users, including the evaluation of any and all risks related to such activities, and we do not make any representations or warranties as to the security or availability of cryptographic wallets, or that access to Passport will be uninterrupted, timely or secure at all times;
(f) your End Users are responsible for maintaining adequate security and control of any and all passwords, hints, non-custodial wallet keys, 2-factor authentication devices or backups, or any other codes that used to access their Passport Account. Any loss or compromise of the foregoing information and/or personal information may result in unauthorised access to an End User’s Passport Account by third-parties and the loss or theft of assets;
(g) a significant degree of technical sophistication is required to safely deal in cryptographic wallets;
(h) we are not responsible for any loss caused by your or any End User’s failure to act in accordance with our policies, procedures or reasonable directions;
(i) we do not guarantee any outcomes, return (financial or otherwise) or tangible benefit to you or any End User from using Passport; and
(j) we provide Passport to you ‘as-is’ and at your own risk and without warranties of any kind. No developer or entity involved in creating Passport, including Immutable, its Affiliates and its Personnel, will be liable for any Loss or Claim whatsoever associated with your use, inability to use, embedding, integration, distribution, or your interaction with Passport or other users of Passport, including any Consequential Loss or loss of cryptocurrencies, tokens, or anything else of value.
4.1 Passport Updates
From time to time, Immutable may provide upgrades, patches, enhancements or fixes of Passport (Updates), but shall have no obligation to provide any such Updates. Immutable will notify you of Updates from time to time. Where requested by Immutable, you shall promptly install and implement any such Updates, as soon as reasonably practicable, and in the case of any security-related Updates, you shall install and implement these within 5 days. You acknowledge that Immutable may cease supporting old versions or releases of Passport at any time in its sole discretion, and that Immutable shall give you reasonable prior notice of any such changes.
4.2 Passport Technical Support
(a) Immutable shall use commercially reasonable efforts to provide Licensee with an appropriate level of support, maintenance service, and uptime for Passport and to enable the integration of Passport as the default wallet on the Platform.
(b) In addition to any included technical support, Immutable may make available additional technical support to the Licensee in respect of the Protocol at an additional cost (which may be provided upon request).
4.3 Customer Technical Support
Immutable shall be solely responsible and liable for performing any and all customer support services relating to Passport to End Users of Passport.
5.1 Our fees
While we don’t currently charge fees for your use of Passport, we may, and reserve the right to, impose fees in future. If we decide to impose fees, we will notify you of the fees and how those fees are to be paid to us. If we impose fees and you do not agree to pay those fees or you fail to pay those fees when invoiced, then we reserve the right to suspend or terminate your use of Passport and the Passport Licence.
5.2 Other fees
The buying, selling, trading and receiving of Digital Assets may be subject to other fees such as blockchain transaction fees, marketplace fees and other third-party fees. End Users are responsible for any such fees.
6.1 Termination for convenience
You may terminate this Agreement for any reason by ceasing to use the Passport service.
6.2 Termination/suspension for cause
We may terminate or suspend your right to use Passport and/or the Passport Licence with immediate effect:
(a) in our sole discretion, if your use of Passport presents a security risk or could adversely impact our systems or services;
(b) if any of the warranties in clause 7.1 are breached;
(c) if you commit any material breach of your obligations under these Passport Terms, and you fail to remedy such breach (if capable of remedy) within 30 days of receipt of notice from us;
(d) if our relationship with any third-party partner who provides technology we use to provide the Passport service expires, terminates or requires us to change the way we provide the Passport service; or
(e) if your use of Passport could subject us, our Affiliates and/or our Personnel to any third party liability;
(f) if Immutable or you are subject to an Insolvency Event; and/or
(g) in our sole discretion, in compliance with or in order to avoid violating any Applicable Law or order of law enforcement or other governmental authority.
6.3 Effect of termination
Termination of these Passport Terms does not affect the rights of the parties which have accrued prior to the termination. Subject to the foregoing, upon termination all your rights under these Passport Terms immediately terminate.
6/4 Transition assistance
In the event that the Passport Terms are terminated by either party pursuant to this clause 6, Immutable may, in its sole discretion, provide a transition period of up to 120 days in which to enable End Users to export their private keys to a different wallet (Transition Assistance).
7.1 Partner warranties
(a) You warrant and assure us that:
(1) you are sufficiently experienced and educated in the operation of, and dealing with, digital wallets to make decisions regarding the use operation of digital wallets;
(2) you have all necessary experience, resources, certificates, licenses, permits and approvals to use, embed, integrate and distribute Passport, and to meet all other obligations under and in accordance with these Passport Terms and all Applicable Laws;
(3) any use of Passport is undertaken at your own risk and we will not be liable for any Loss of any kind including Consequential Loss and including any loss of Digital Assets by you or any End User arising from any breach of security or unauthorised access or unexpected operation of any Smart Contracts;
(4) you will only use a Passport for lawful purposes. You warrant you will not do any act that is unlawful or prohibited by any Applicable Laws, including but not limited to any act which would constitute a breach of privacy, or engaging with Passport to defame or libel us, our Affiliates, our Personnel or any other person;
(5) you will not reverse engineer the code associated with Passport or upload files which contain viruses or malware which may cause damage to our property or the property of other individuals or use Passport in a manner that is otherwise detrimental to or in violation of our security protocols;
(6) you will not damage, disrupt, interfere with or misuse a Passport Account or Passport services, including by data mining, hacking, data harvesting or scraping, the launching of any automated program or script including web crawlers, web robots, web indexers, bots, viruses or worms or any program, which makes excessive server requests or impairs the operation and/or performance of Passport as determined by us in our sole discretion;
(7) all information supplied by you is true and accurate as at the time it is given, and that any information you provide has been given in accordance with best practice security measures;
(8) as far as you are aware, there are no facts, circumstances or other information which:
(A) you have not fully and fairly disclosed in a manner and to the extent that would allow us to make a reasonable assessment of those facts, matters and circumstances prior to execution of these Passport Terms; and
(B) is of such nature and materiality that a reasonable person, had they been made aware, could not reasonably be expected to offer these services;
(9) you are not involved in any capacity in any claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry, mediation or arbitration (nor which are pending or threatened) that may affect us or your ability to comply with these Passport Terms;
(10) you have had the opportunity to obtain independent legal advice in relation to the terms and effect of these Passport Terms;
(A) are not subject to sanctions or otherwise designated on any sanctions list or equivalent maintained by the UNSC, OFAC and/or DFAT or any other applicable regime; or
(B) are not located in a Restricted Jurisdiction.
7.2 Continuous warranties
You represent and warrant that each of the warranties in clause 7.1 are true and accurate, and not misleading or deceptive as at the date of these Passport Terms and subject to clause 7.3, on an ongoing basis, and, except as expressly stated, will be true, accurate and not misleading or deceptive.
You must disclose to us anything that has or will constitute a material breach of any warranty under clause 7.1, or cause any warranty under clause 7.1 to be untrue or inaccurate, as soon as practicable after you become aware of it.
7.4 Knowledge and awareness
Where a warranty is given ‘to the best of a party’s knowledge, belief or awareness’, or ‘as far as the party is aware’ or with a similar qualification as to the relevant party’s awareness or knowledge, the party giving the warranty will be deemed to know or be aware of a particular fact, matter or circumstance if that party’s directors or senior management employees are aware of that fact, matter or circumstance, or would have become aware if they had made reasonable enquiries.
7.5 Mutual warranties
Each party warrants and assures the other party that:
(a) If a legal entity:
(1) it is duly incorporated and validly exists under the law of its place of incorporation; and
(2) it is not subject to an Insolvency Event.
(b) If an individual or a legal entity:
(1) the execution and delivery of this agreement has been properly authorised by all necessary action of each party; and
(2) this agreement constitutes a legal, valid and binding agreement enforceable in accordance with its terms by appropriate legal remedy.
7.6 Warranties and Disclaimer
(a) Passport is provided to you strictly on an “as is” and “as available” basis. You acknowledge that:
(1) your use of Passport is at your own risk;
(2) prior to accepting these Passport Terms, you have been given a reasonable opportunity to examine and satisfy yourself as to the contents of these Passport Terms;
(3) at no time prior to accepting these Passport Terms have you relied on our skill or judgement, and you acknowledge that it would be unreasonable for you to do so.
(b) To the maximum extent permitted by law, all other warranties or conditions which are not guaranteed by law are expressly excluded, including liability for Consequential Loss caused by breach of any express or implied warranty or condition. In particular, we do not warrant:
(1) that your use of Passport will be free from interruptions, errors or viruses; or
(2) the accuracy, adequacy or completeness of any material, service or interface provided by third parties, including our Affiliates.
8. Indemnity and Release
8.1 You must indemnify us, our Affiliates, Personnel and licensors (the Indemnified Parties) and keep the Indemnified Parties indemnified at all times to the fullest extent permitted by law in respect of any Loss or Claim which the Indemnified Parties may suffer, sustain or incur arising from, or connected with, a breach of these Passport Terms by you without limitation.
8.2 By using Passport, you agree to release us and our Affiliates from any Claims to the fullest extent permitted by law in respect of any Loss or Claim howsoever arising including in respect of your use of Passport, including any Claim for Consequential Loss of any kind and Loss relating to delays, inaccuracies or incomplete services caused by us or our third party suppliers.
9. Limitation of Liability
9.1 Compliance with laws – No monitoring responsibilities
(a) We will have no Liability or responsibility for your compliance with Applicable Laws governing your use of Passport. Further, you are solely responsible for compliance with all Applicable Laws having jurisdiction over your use and interactions with Passport and/or your business operations generally.
(b) You further acknowledge that neither us nor any of our Affiliates or Personnel is, and will not be, by virtue of providing Passport, an advisor, fiduciary or trustee to you and, given the non-custodial nature of the Passport Account, Immutable does not hold Digital Assets and expressly disclaims any trust in respect of Digital Assets held by you and any End User.
9.2 Third Party Services
We will not be liable for the performance, errors or omissions of third parties or decentralised networks such as, by way of example and not limiting: blockchain networks (whether private/permissioned or public), providers of third party software applications (such as games) that use, embed, integrate Passport into their applications, telecommunications and other companies not under our reasonable control, third parties providing services to the blockchain industry generally, such as, companies and other entities providing processing and payment or transaction services (including “Layer 2” or similar “roll-up” or optimisation services), banking partners, custody services, market making services and/or third party pricing services.
9.3 No liability for Consequential Loss
Neither party will be liable to the other for any Loss or Claim in the nature of Consequential Loss.
9.4 Our liability
To the maximum extent permitted by law, we do not accept responsibility for any Loss (including Consequential Loss), however caused and whether or not foreseeable (whether in contract, tort, for breach of statutory duty or otherwise), even if we have previously been advised of the possibility of such loss or damage which you may directly or indirectly suffer in connection with:
(a) your use of Passport or any linked services (including interference with or damage to your computer or mobile devices arising in connection with any such use);
(b) Passport being interrupted or unavailable;
(c) errors or omissions from Passport;
(d) any failure or lack of any security measures relating to Passport, or any third party including in relation to the storage or transfer of Digital Assets;
(e) viruses, malicious codes or other forms of interference affecting Passport or any linked services;
(f) your use of or reliance on information contained on or accessed through Passport, the Websites or any linked services, which information may be incorrect, incomplete, inadequate or outdated;
(g) goods or services supplied pursuant to or in any way connected with Passport;
(h) unauthorised access to or use of servers and/or any information stored on them; or
(i) any failure or omission on our part to comply with our obligations as set out in these Passport Terms.
9.5 Specific warnings
You must ensure that your access to Passport is not illegal or prohibited by laws which apply to you in the jurisdiction in which you are located. You agree that you will not rely on any information contained on the Websites or Third Party Sites or the availability of such information and that any decision you make in relation to Passport will be as a result of your own independent assessment of such information. Even though we intend on providing accurate information, we cannot guarantee that the information on the Websites is accurate, complete or updated, or free from technical inaccuracies or typos.
10.1 All legal rights, title and interest in and to all elements of Passport and the content of Passport (including its “look and feel”, text, graphics (all art, drawings and artistic works), images, logos, icons, photographs, editorial content, films, sound recordings, literary works, software, design, systems, methods, information, computer codes, compilation of content, other codes, data and other material) (Applicable Intellectual Property), and all rights in and associated with the Applicable Intellectual Property (including without limitations all copyright, trademarks, service marks and trading names) is owned by us or licensed to us by third parties and protected under Applicable Laws.
10.2 Other than for the purposes of, and subject to the conditions prescribed under Applicable Laws, and except as expressly authorised by these Passport Terms or in writing by us, you may not in any form or by any means:
(a) modify, copy, adapt, reproduce, store, distribute, transmit, print, display, perform, reproduce, publish, licence, or create derivative works from any part of Passport or the Applicable Intellectual Property; or
(b) commercialise or commercially exploit, transfer, or sell any content, software, information, products, or services obtained from any part of Passport or the Applicable Intellectual Property without prior written approval.
Where there is inconsistency between these Passport Terms and other content displayed as part of Passport, the content of these Passport Terms will prevail to the extent of any inconsistency.
In these Passport Terms:
Passport means the non-custodial wallet and authentication solution owned by us;
Passport Account means the individual wallet and authenticated identity created by an End User for use on the Websites or with our Affiliates or with a Third Party Service;
Third Party Sites means online websites, applications or services that we do not own or control, including those of our Partners.