Terms and Conditions

and Privacy Policy

1. SERVICES AND SUPPORT 1.1 Subject to the terms and conditions of this Agreement, Uptop will provide Customer with access to the Services. The Services are hosted software and therefore subject to modification from time to time at Uptop’s sole discretion, provided that if Uptop reasonably believes a modification will materially adversely affect Customer, Uptop will provide Customer prior notice of the applicable modification and Customer may exercise its right to terminate this Agreement for convenience pursuant to Uptop reserves the right to suspend Customer’s access to the Services in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Uptop. 1.2 Subject to the terms hereof, Uptop will use commercially reasonable efforts to provide reasonable support to Customer for the Services from Monday through Friday during Uptop’s normal business hours. Uptop does not promise that it can fix any problem Customer may be having, and the foregoing shall not be construed as a representation or warranty. 2. THIRD PARTY SERVICES; IMPLICATIONS OF LEVERAGING BLOCKCHAINS 2.1 Customer acknowledges and agrees that the Services are dependent on the e-commerce storefront services offered to Customer by Shopify Inc. (“Shopify”) and the API offered to Uptop by Shopify (collectively, the “Shopify Services”). Uptop is not responsible or liable for the Shopify Services, and it is not a breach of this Agreement if Uptop is not able to perform the Services due to unavailability of or errors in the Shopify Services. 2.2 NFTs are distributed on the Polygon blockchain protocol and network (the “Polygon Network”) that is outside the control of Uptop and subject to many risks and uncertainties. Beyond the Polygon Network, Uptop can support all EVM (or Ethereum virtual machine) compatible blockchains. 2.3 Secondary Sales can be recorded on blockchain networks that are outside the control of Uptop. Uptop is not responsible or liable for the functioning of any blockchain network, nor for the acts or omissions of any contributor to the Polygon Network, the Ethereum Network or any other blockchain network that may affect the NFTs. It shall not be a breach of this Agreement if Uptop is unable to perform the Services due to any error or failure on part of third party blockchain networks. 2.4 Uptop does not give advice or recommendations regarding NFTs, including the suitability and appropriateness of, and investment strategies for, NFTs. Customer understands that Uptop will not be responsible for any communication failures, disruptions, errors, distortions or delays Customers may experience when using NFTs, however caused. 2.5 UPTOP DISCLAIMS ALL LIABILITY OF ANY KIND RELATING TO THE ACTS OR OMISSIONS OF THIRD PARTIES THAT ARE OUTSIDE THE CONTROL OF UPTOP, INCLUDING THOSE RELATED TO THE SHOPIFY SERVICES, THE POLYGON NETWORK, OR OTHER BLOCKCHAIN NETWORKS. 3. RESTRICTIONS AND RESPONSIBILITIES 3.1 Access to the Services may require the Customer to download and/or install certain Uptop content or other downloadable content from the internet. Such content is part of the Services and subject to all restrictions set forth herein. 3.2 Customer will not, and will not permit any third party to: use the Services to sell or transact any NFTs not originally created or distributed on the Services; reverse engineer (except that the foregoing restriction shall not apply to the limited extent applicable law expressly prohibits such a restriction), decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services; use the Services for any purpose other than its own internal business purposes; use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any applicable privacy laws), or in any manner that infringes or violates the intellectual property rights or proprietary rights of any third party; or use the Services in any manner that is harmful, fraudulent, deceptive, threatening, abusive, obscene, libelous, or otherwise objectionable. 3.3 Customer will cooperate with Uptop in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Uptop may reasonably request. Customer will also cooperate with Uptop in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. 3.4 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Uptop. 3.5 Customer will be responsible and liable for maintaining the security of Customer account, passwords and files, and for all uses of Customer’s account with or without Customer’s knowledge or consent. 4. CONFIDENTIALITY; PRIVACY; INTELLECTUAL PROPERTY RIGHTS 4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party). 4.2 The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (ii) to give access to such Confidential Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own confidential information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. 4.3 Customer acknowledges that Uptop does not wish to receive any Confidential Information from Customer that is not necessary for Uptop to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Uptop may reasonably presume that any unrelated information received from Customer is not Confidential Information. 4.4 The terms of this Agreement (including pricing information) are the Confidential Information of Uptop, deemed disclosed by Uptop. 4.5 As part of the Services, Uptop may obtain access to content or data provided by or on behalf of Customer (“Content”), including information about or related to Customer, and/or buyers from Customer’s store, such as personally identifiable and/or business information. The Content includes the NFTs themselves, along with any underlying material or data associated or used to create the NFTs. Customer hereby grants Uptop an irrevocable, perpetual, non-exclusive, worldwide, royalty- free right and license to use and exercise all rights in the Content in connection with providing and improving the Services; provided, however, Uptop will not disclose any Content to a third party in a manner that personally identifies any individual person, except as Customer requested or authorized Uptop to do through use of the Services. Notwithstanding anything to the contrary, Uptop may collect, use and disclose any information collected in connection with the Services in an aggregate manner that does not personally identify Customer or any specific buyers from Customer’s store. 4.6 As between the parties, Uptop (and its licensors, where applicable) will retain all intellectual property rights relating to the Services, including any downloadable content, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service, which Customer hereby assigns to Uptop. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. 4.7. Although Uptop has no obligation to monitor the Content provided by Customer or Customer’s use of the Services, Uptop may do so and may remove or block any Content or prohibit any use of the Services it reasonably believes may be (or is alleged to be) in violation of this Agreement (including without limitation by refusing to facilitate a Storefront Sale). 5. PROFESSIONAL SERVICES 5.1 Uptop may from time to time perform Professional Services as agreed upon by the parties. Such Professional Services shall be set forth in a separate Statement of Work (“SOW”), that shall include the scope of implementation of services, the anticipated schedule, the fee structure, and the deliverables (if any) to be provided as part of the Professional Services. All SOWs executed pursuant to this Agreement shall be deemed incorporated herein and be subject to the terms and conditions of this Agreement. Any change to the scope of any deliverable, milestone or payment obligation contained in a SOW shall be made only in writing and signed by authorized representatives of Uptop and Customer. Customer shall provide Uptop with (i) one (1) designated contact for all questions and issues relating to Professional Services; (ii) access to Customer’s facilities and office support as may be reasonably requested by Uptop; and (iii) the services of sufficiently qualified Customer personnel as may be reasonably necessary to enable Uptop to perform the Professional Services. Customer hereby grants to Uptop all rights, licenses and permissions necessary and/or useful in connection with its performance of the Professional Services. Unless otherwise provided in a SOW, Customer acknowledges and agrees that any and all work product resulting from a SOW shall be and remain the sole and exclusive property of Uptop, and Uptop grants Customer a non-exclusive, non-transferable license to use such work product solely as part of the Services for its internal use consistent with the terms of this Agreement.

6. PAYMENT OF FEES

6.1 Customer will pay Uptop the applicable fees as set forth on the Order Form (the “Fees”). Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower. Monthly Subscription Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding U.S. taxes based on Uptop’s net income). In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.

6.2 The Monthly Subscription Fee may change upon at least thirty (30) days’ prior notice to Customer and will become effective upon the next monthly “anniversary” following such thirty (30) day period.

7. TERMINATION

7.1 Either party may terminate this Agreement at any time for convenience upon thirty (30) days’ prior written notice to the other party. Either party may also terminate this Agreement at any time for the other party’s material breach, upon fifteen (15) days’ prior written notice to the other party (unless such breach is cured within such notice period). No refunds are granted except as expressly set forth in the Order Form.

7.2 The following provisions shall survive termination of this Agreement: Sections 2, 3.2, 4, 7, 8, 9, 10, and 11.

8. WARRANTY DISCLAIMER The Services and Uptop Confidential Information and anything provided in connection with this Agreement are provided “as-is,” without any warranties of any kind. Uptop (and its licensors and suppliers) hereby disclaim all warranties, express or implied, including, without limitation, all implied warranties of merchantability, fitness for a particular purpose, title, non- infringement, or that use of the Services will have a particular result, including the meeting of Customer’s sales goals.

9. LIMITATION OF LIABILITY

In no event will Uptop (or any of its licensors or suppliers) be liable for any indirect, punitive, incidental, special, or consequential damages, or cost of procurement of substitute goods, services or technology, in any way connected with the use of the Services or anything provided in connection with this Agreement, the delay or inability to use the Services or anything provided in connection with this Agreement, including without limitation, loss of revenue or anticipated profits or lost business or lost sales, whether based in contract, tort (including negligence), strict liability or otherwise, even if Uptop has been advised of the possibility of damages. The total liability of Uptop under any circumstances will not exceed, in the aggregate, the lesser of (i) ten thousand (10,000) dollars, or (ii) the fees paid to Uptop hereunder in the twelve (12) month period ending on the date that a claim or demand is first asserted. The foregoing limitations will apply notwithstanding any failure of essential purpose of any limited remedy.

10. U.S. GOVERNMENT MATTERS Not with standing anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Uptop are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

11. MISCELLANEOUS If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Uptop’s prior written consent; any assignment or transfer without such consent is void. Uptop may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Uptop in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Uptop will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of New York, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in New York County, New York, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.