This Metafolio terms and conditions (hereafter the “Agreement”) is entered into by and between Metafolio (“Licensor”) and a person or corporation whose details are set forth in the order form (“Customer”). The parties are hereafter individually referred to as “Party” or collectively as “Parties”.

 

DEFINITIONS

1. As used in this Agreement:

a)       “Fees” means the fees payable by Customer to access and use the Software hereunder. Fees are set forth in Section 2 of Schedule A to the Agreement;

b)       “Intellectual Property Rights” means all rights under any statute or common law protecting unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, Software marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property and intangibles, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

c)       “Software” means all of Licensor’s proprietary technology (including  software code, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, databases, and other tangible or intangible technical material or information) made available to Customer by Licensor under the name of Metafolio;

d)       “User(s)” means the Customer, its employees, representatives, contractors or agents who are authorized to use the Software and have been supplied user identifications and passwords by Customer.

e)       “User Content” means the content uploaded by Customer to the Software.

 

LICENSE AND INTELLECTUAL PROPERTY

2. Software License. Subject to the terms of this Agreement, Licensor hereby grants to the Customer, a non-exclusive, non-transferable, royalty free (except for Fees otherwise payable under this Agreement), right and license, to use the Software for its intended purposes only for the Term of the Agreement. All rights not expressly granted herein to Customer are reserved by Licensor and its licensors, as the case may be.

 

3. Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software or the Software in any way; (ii) copy, reproduce, modify or make derivative works based upon the Software; (iii) create Internet “links” to the Software or “frame” or “mirror” any Software on any other server or wireless or Internet-based device; or (iv) reverse engineer the Software; (v) build a competitive product; (vi) build a product using similar ideas, features, functions or graphics of the Software, (vii) copy any ideas, features, functions or graphics of the Software or (viii) “spider” the Software or otherwise automate data collection from the Software by any means other than through Users. Customer shall not have the right to: (i) market, distribute or sell the Software, (ii) extend the license to any affiliate, partner or any other third party, (iii) sub-license the Software to any affiliate, partner or any other third party.

 

4. Customer Obligations. Customer is responsible for all activity occurring under Customer’s User accounts and for all User Content, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Software, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify Licensor immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Licensor immediately and use reasonable efforts to stop immediately any copying or distribution of Software that is known or suspected by Customer or Customer’s Users; and (iii) not impersonate another Licensor user or provide false identity information to gain access to or use the Software.

 

5. Licensor’s Moderation rights. Licensor can, at its entire and sole discretion, remove any User Content which is determined to breach any applicable local, State, national or foreign laws. Licensor can share any information relating to this Agreement and the User Content in order to cooperate with law enforcement authorities.

 

6. Intellectual Property Ownership. Licensor alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Software, the Software and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Software. Customer shall own all rights, title and interested including all Intellectual Property Rights in and to the User Content.

 

 

FEES AND INVOICING

7. Customer shall pay all Fees or charges to Customer’s account in accordance with the order form to the Agreement as well as the fees and invoicing terms in effect at the time a Fee is due and payable. Accounts and invoices in arrears are subject to interest of 12% per annum, calculated daily, on any outstanding balance, plus all expenses of collection. Licensor’s Fees are exclusive of all sales taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties.

 

8. Annual Fees Adjustment. The Fees will increase automatically once every year at a rate of 3% or as otherwise determined by Licensor upon any Renewal Term.

 

TERM AND TERMINATION

9. This Agreement commences on the Effective Date and will remain in force until the Agreement is terminated (the “Term”).

 

10. Termination for cause. Either Party may terminate this Agreement by written notice to the other party after the expiration of a period of thirty (30) days following a written notice to the other Party concerning any of the following: (i) should the other Party become insolvent or file an assignment for the benefit of creditors; (ii) should bankruptcy proceedings be commenced by or against the other Party; or (iii) should the other party fail to cure a material breach of this Agreement within thirty (30) days after being notified in writing of the breach. It is understood that breach of payment obligations and of Software usage restrictions shall be deemed to be material.

 

11. Termination without cause. Either Party can terminate this Agreement upon thirty (30) days written notice to the other Party.

 

WARRANTIES, LIABILITY AND INDEMNIFICATION

12. Limited Warranty. Licensor warrants that the Software will be offered in a professional manner in accordance with prevailing industry standards. Except for the above, Licensor makes no warranties, express or implied, including the warranties of merchantability, fitness for a particular purpose, or non-infringement with respect to its Software or the sites, or the functionality, performance, data accuracy, results of use of, or decisions based on the use of its Software or the sites. Errors regarding the automated classification of User Content may happen and Licensor doesn’t warrant the accuracy of the information provided by the Software regarding the User Content.

 

13. Licensor’s Indemnification Obligation. Licensor shall indemnify and hold Customer and Customer’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim alleging that the Software on its own directly infringes a third-party Intellectual Property Rights. This is conditional to the Customer (a) promptly giving written notice of the claim to Licensor; (b) giving Licensor sole control of the defence and settlement of the claim (provided that Licensor may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) providing to Licensor all available information and assistance; and (d) having not compromised or settled such claim.

 

14. Limitation of Liability. In no event shall either party’s aggregate liability exceed the amounts actually paid by and/or due from Customer in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this Software, including but not limited to the use or inability to use the Software, or for any content obtained from or through the Software, any interruption, inaccuracy, error or omission, regardless of cause in the Software, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages.

 

15. Third-Party Platform Integration Disclaimer. The Software may allow or facilitate integration with third-party platforms, services, or applications (“Third-Party Platforms”). By choosing to integrate the Software with any Third-Party Platform, the User acknowledges and agrees that such integration is subject to the terms and conditions, policies, and guidelines of the respective Third-Party Platform. The Licensor makes no representations or warranties regarding, and shall have no liability whatsoever arising from or relating to, the User’s use of any Third-Party Platform, including but not limited to any actions taken by such platforms against the User (such as account suspension, restriction, or termination) as a result of the integration or use of the Software. The User is solely responsible for ensuring compliance with all applicable terms of use and policies of any Third-Party Platform they choose to integrate with the Software. The Licensor shall not be held liable for any loss, damage, or penalty incurred by the User due to such integration.

 

CONFIDENTIALITY AND PRIVACY

16. Confidentiality. Licensor agrees at all times to hold in strictest confidence and not to use, except for the benefit of Customer to the extent necessary to perform it obligations to Customer under this Agreement and as contemplated under the https://metafol.io/private-policy-metafolio-digital-assets-management/ or to disclose to any person, firm, corporation or other entity without written authorization of Customer, any Confidential Information of Customer unless as contemplated under Section 5 of the Agreement. Licensor agrees not to make copies of such Confidential Information except as authorized by Customer. Customer agrees not to use or disclose to any person, firm, corporation or other entity without written authorization of Licensor, any Confidential Information of Licensor. Customer agrees not to make copies of such Confidential Information except as authorized by Licensor.

 

17. “Confidential Information” means any Party’s proprietary information, personal information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, Software, suppliers, customer lists and, prices and costs, markets, software, developments, inventions, laboratory notebooks, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets or other business information disclosed to Licensor by Customer either directly or indirectly in writing, orally or by drawings or observation of parts or equipment or created by me during the Term of this Agreement, whether or not during working hours. Confidential Information includes, but is not limited to, information pertaining to any aspect of either Party’s operations that is either information not known by actual or potential competitors or other third parties not under confidentiality obligations to the disclosing Party, or is otherwise proprietary information of the disclosing Party or its customers or suppliers, whether of a technical nature or otherwise. The Parties understands that Confidential Information does not include any of the foregoing items that have become publicly and widely known, and made generally available through no wrongful act of Licensor, or of others who were under confidentiality obligations as to the item or items involved.

 

18. Licensor recognizes and agrees that he may process personal information and warrants to the Customer that it shall process personal data as per the Privacy Policy.

 

19. AI Training.

 

MISCELLANEOUS

20. Licensor and Customer may give notice to the other party by way of electronic mail to Customer’s e-mail address set forth on the first page of this Agreement or to Licensor’s following e-mail address: info@metafol.io.

 

21. This Agreement may not be assigned by the Parties without the prior written approval of the other party but may be assigned without the other Party’s consent by any Party to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger.

 

22. Governing Law. This Agreement shall be construed pursuant to the laws of Alberta and Canada applicable therein.

 

23. This Agreement may not be modified or amended except in writing, which is signed by authorized representatives from each party.

 

24. The failure of either party to exercise any right or the waiver by either party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of the Agreement.

 

25. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason not within its reasonable control, such as an act of God, fire, storm, natural disaster, accident, act of government, labor dispute, shortages of materials or supplies or any other cause beyond the control of such party (“Force Majeure“) provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) calendar days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of three (3) months.

 

26. Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements. There are no promises, covenants, or undertakings other than those expressly set forth in this Agreement.

 

27. Injunctive relief. The Parties recognize that money damages may not be an adequate remedy for any breach or threatened breach of any obligation hereunder by Customer involving intellectual property, confidential information or use of the Software beyond the scope of the rights granted by this Agreement. The Parties therefore agree that in addition to any other remedies available hereunder, by law or otherwise, Licensor shall be entitled to an injunction against any such continued breach by Customer of such obligations without proving damages or posting a bond.

 

28. The provisions of this Agreement are declared to be severable. Should any provision of this Agreement be held to be void, invalid, inoperative, or unenforceable under applicable law, the remaining provisions of this Agreement shall not be affected and shall continue in full effect as though such provisions were deleted and the Parties agree to negotiate in good faith a substitute valid provision that most nearly approximates the Parties’ intent. Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose.

 

29. Press Release. The Parties agree that Licensor may wish to announce the transaction contemplated by this Agreement in the form of a press release or as a logo displayed on the Licensor’s website, subject to Customer’s approval which shall not be unreasonably withheld, promptly after the execution of this Agreement. Notwithstanding the preceding, Licensor shall have the right to disclose and describe the transaction contemplated by this Agreement in its securities filings if and as required by law.

 

30. This Agreement may be executed in any number of counterparts and all counterparts taken together constitute one and the same instrument. Receipt of an originally executed counterpart signature page by facsimile or an electronic reproduction of an originally executed counterpart signature page by electronic mail is effective execution and delivery of this Agreement.