31st October, 2023
Please read these Terms of Service ("Terms", "Terms of Service") carefully before using the Lithium Digital website (the "Service") operated by Lithium Digital ("us", "we", or "our"). Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users, and others who access or use the Service. By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms, then you may not access the Service
1.1 "User": Refers to the employees and/or contractors of the Customer for whom a User license has been purchased to enable access and use of the Lithium Digital Platform.
1.2 "Access Credentials": Comprises login information, passwords, security protocols, and policies that facilitate Users’ access and use of Lithium Digital Services.
1.3 "Lithium Digital Platform" refers to the interface of Lithium Digital Services accessible by Users for administrative functionality.
1.4 "Lithium Digital Documentation": Denotes text and/or graphical materials, in print or electronic form, describing the features, functions, and use of Lithium Digital Services, made available to the Customer.
1.5 "Lithium Digital Services" refers to the version of the Lithium Digital software as a service offering made generally commercially available by Lithium Digital as of the Effective Date, and all Updates thereto made generally commercially available by Lithium Digital to its customers during the Term of this Agreement, including Lithium Digital Platform services and Lithium Digital API.
1.6 "Lithium Digital System Analytics": Encompasses anonymized information generated or derived from the use of Lithium Digital Services and/or Technology, excluding Customer Inputs, used for service improvement.
1.7 "Lithium Digital Technology" refers to the computer software, computer code, scripts, neural networks, artificial intelligence, application programming interfaces, methodologies, processes, templates, reports, workflows, diagrams, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, APIs, third-party services, and other tangible or intangible technical material, information, and works of authorship underlying or otherwise used to make available Lithium Digital Services, including, without limitation, all upgrades, enhancements, modifications, additions, and improvements thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.
1.8 "Lithium Digital API" refers to a collection of routines, classes, function parameters, protocols, webhooks, related libraries, and other instructions provided in source code or object code form.
1.9 "Lithium Digital Marketplace" Refers to the site maintained by Lithium Digital for information about third-party offerings
1.10 "Customer Inputs" Refers to content posted, provided, or uploaded to Lithium Digital Services by Customer and/or its Users.
1.11 "Intellectual Property Rights": refers to any and all now known or hereafter existing
(a) rights associated with works of authorship, including rights in and to writings, specifications, drawings, records, documentation, advertising, promotional materials, copyrights, mask work rights, and moral rights;
(b) trademark or service mark rights
(c) trade secret rights, rights in and to business, technical and know-how information, non-public information, proprietary information, and confidential information;
(d) rights in and to patentable ideas, inventions, discoveries, patents, patent rights, and industrial property rights;
(e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights;
(f) rights in and to software, including algorithms, data files, source code, object code, application programming interfaces, databases, and other software-related specifications and documentation; and
(g) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
1.12 "Third Party Services" refers to any software, software-as-a-service, data sources, or other products or services separately procured by Customer from a third party that are integrated with Lithium Digital Services by Customer or by Lithium Digital, including without limitation through use of the Lithium Digital APIs.
1.13 "Updates" refers to all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of Lithium Digital Services made generally commercially available as part of Lithium Digital Services during the Term of this Agreement.
2. Lithium Digital Service
2.1 Subject to and in accordance with this Agreement and the applicable Order Forms, including, without limitation, payment of all applicable fees, Lithium Digital will use reasonable commercial efforts to make Lithium Digital Services available to Customers.
2.2 Customer Access: Customer acknowledges and agrees that Customer’s and its Users’ access and use of Lithium Digital Services depend on Customer’s and its Users’ access to telecommunications and Internet services. Customers shall be solely responsible for procuring and maintaining all telecommunications and Internet services, as well as other necessary hardware and software required for accessing and using Lithium Digital Services, including, without limitation, all associated costs, fees, expenses, and taxes. Lithium Digital shall not be liable for any data loss, communication disruptions, or any other losses or damages arising from telecommunications or Internet services or related hardware or software.
2.3 Service Modifications: Lithium Digital reserves the right to continuously modify Lithium Digital Services. If any such modification substantially and adversely affects the functionality of Lithium Digital Services, Customer may terminate its subscription for Lithium Digital Services in accordance with Section 10.2(a). Lithium Digital may make the implementation of new features, functionality, or other modifications to Lithium Digital Services conditional upon Customer’s payment of additional fees, provided that Lithium Digital generally charges other customers for such modifications.
2.4 API Usage: Abuse or excessively frequent requests to Lithium Digital Services via the Lithium Digital API may result in the temporary or permanent suspension of the User’s access to the Lithium Digital API. Lithium Digital, at its sole discretion, will assess instances of abuse or excessive usage of the Lithium Digital API. We will make a reasonable effort to notify the User via email before any suspension. Users are prohibited from sharing Lithium Digital API keys to surpass Lithium Digital’s rate limitations.
All utilization of the Lithium Digital API is subject to these Terms of Service and the Lithium Digital Privacy Policy. Lithium Digital may offer subscription-based access to the Lithium Digital API for Users requiring high-throughput access or access that would involve reselling Lithium Digital’s Service. In the case of subscription-based access to the Lithium Digital API, the use of the Lithium Digital API, including rate limitations, will be governed by the terms of the subscription.
2.5 Platform Misuse: Lithium Digital reserves the right to terminate and/or suspend any accounts that, at its sole discretion, are being used to exploit the Lithium Digital platform. This includes, but is not limited to, creating multiple accounts to circumvent usage limits. Each Customer is allowed to create only one account. We require email verification for account creation, and each credit card can only be used for one account. We also reserve the right to unilaterally modify the terms of our free or trial plans at any time. Such changes may include the imposition of new usage limits or the requirement of payments for certain features.
3. ACCESS GRANT LICENSES; OWNERSHIP
3.1 (a) Lithium Digital will adhere to its standard archival procedures for the storage of Customer Inputs. In case of any loss or corruption of Customer Inputs, Lithium Digital will make commercially reasonable efforts to recover the lost or corrupted Customer Inputs from the most recent backup of such Customer Inputs maintained by Lithium Digital or its third-party service provider in accordance with its archival protocols.
(b) Lithium Digital will not bear responsibility for any loss, corruption, destruction, alteration, or unauthorized disclosure of or access to Customer Inputs, whether directly or indirectly resulting from actions or oversights of the Customer, its Users, or a third party. LITHIUM DIGITAL’S ATTEMPTS TO RESTORE LOST OR CORRUPTED CUSTOMER INPUTS PURSUANT TO THIS SECTION 3.1 WILL CONSTITUTE LITHIUM DIGITAL’S SOLE LIABILITY AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS, CORRUPTION, DESTRUCTION, ALTERATION, OR UNAUTHORIZED DISCLOSURE OF OR ACCESS TO CUSTOMER INPUTS.
3.2 Feedback: In the event that Customer and/or its Users provide Lithium Digital with any ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback, or other input related to the Services, Lithium Digital Services, or the Lithium Digital Technology (collectively referred to as "Feedback"), including, but not limited to, responses to any product plans or roadmaps shared with Customer, unless otherwise agreed upon in writing before such disclosure, Customer grants Lithium Digital a global, royalty-free, fully paid, perpetual, irrevocable license to utilize, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, create, have created, and otherwise exploit the Feedback in any form, media, or technology, whether presently known or subsequently developed. This also includes allowing others to do the same without any restrictions or obligations based on confidential information, intellectual property rights, or any other considerations. Lithium Digital may incorporate into its services any service, product, technology, enhancement, documentation, or other development ("Improvement") that incorporates or is derived from any Feedback, with no obligation to license or make the Improvement available to Customer or any other individual or entity.
3.3 Ownership: The Lithium Digital Services, the Lithium Digital Technology, the Lithium Digital System Analytics, the Lithium Digital Documentation, and the Lithium Digital Platform, along with all global Intellectual Property Rights associated with each of the aforementioned elements, are the exclusive property of Lithium Digital and its licensors. With the exception of the rights and licenses expressly granted in this Agreement, all rights pertaining to the aforementioned elements are retained by Lithium Digital and its licensors. This Agreement does not confer upon Customer any entitlement to receive a copy of the software platform underlying Lithium Digital Services or any other Lithium Digital Technology, whether in object or source code form.
3.4 Marketing: Lithium Digital may publicly acknowledge Customer as a user of Lithium Digital, which may include references on the Lithium Digital website and in sales presentations. Lithium Digital may also use Customer’s logo for this purpose. Similarly, Customer may publicly identify itself as a user of Lithium Digital’s software as a service, including on Customer’s website and in sales presentations.
Customer agrees that, at Lithium Digital’s expense, Lithium Digital may issue a press release after the Effective Date regarding Customer’s use of Lithium Digital Services, subject to Customer’s approval. The parties agree to collaborate in the development of a case study, the content of which will be directed by Lithium Digital and approved by Customer. This case study will include an impact analysis, and Customer agrees that Lithium Digital may publish it on its website or in its marketing materials. Lithium Digital will provide advance notice to Customer of any future publications or case studies. In the absence of comments and/or replies within a period of 5 business days, Customer’s approval will be deemed granted.
Upon Lithium Digital’s request and in accordance with the guidelines provided by Lithium Digital, Customer shall display a "Powered by Lithium Digital" logo on Customer’s website or other publicly accessible Customer information resource.
3.5 References: Customer agrees that Lithium Digital may provide Customer’s business contact information to third parties, enabling these third parties to seek information from Customer regarding the utilization of Lithium Digital Services. Lithium Digital will notify Customer three business days before providing this information, allowing Customer to raise any objections to Lithium Digital. In the absence of any response, approval will be assumed to have been received.
4. CUSTOMER RESPONSIBILITIES
4.1 Access Credentials: Customers shall take measures to protect, and ensure that all Users protect, the devices, computers, and networks used to access Lithium Digital Services, as well as all Access Credentials. Customers will be responsible for all acts and omissions of Users. Customer agrees to:
Customers shall promptly inform Lithium Digital if it becomes aware of any unauthorized use of Access Credentials or any known or suspected security breaches. Lithium Digital retains the right, at its sole discretion and without liability to Customer or its Users, to take any actions it deems necessary or reasonable to ensure the security of Lithium Digital Services, Customer’s Access Credentials, and account. This includes the option to terminate Customer’s access or the access of any of Customer’s Users to Lithium Digital Services, change passwords, or request additional information to authorize activities related to Customer’s account.
4.2 Use Guidelines: Customer must adhere to all applicable laws, rules, and regulations when using Lithium Digital Services. Customer and its Users must use Lithium Digital Services solely for the internal business purposes outlined in this Agreement and shall not:
(i) License, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share, or otherwise commercially exploit or make Lithium Digital Services available to any third party, except as expressly permitted by this Agreement.
(ii) Disrupt or interfere with the integrity or performance of Lithium Digital Services, the Lithium Digital Technology, or the data contained therein. This includes any interference with servers or networks connected to Lithium Digital Services or the violation of any requirements, procedures, policies, or regulations of networks connected to Lithium Digital Services.
(iii) Attempt to gain unauthorized access to Lithium Digital Services, the Lithium Digital Technology, or any related systems or networks.
(iv) Remove, alter, or obscure any proprietary notices associated with Lithium Digital Services.
(v) Use Lithium Digital Services in violation of any applicable law, rule, regulation, or guideline.
(vi) Attempt to probe, scan, test (including stress testing or penetration testing) the vulnerability of any system or network associated with Lithium Digital Services or breach any security or authentication measures.
(vii) Utilize Lithium Digital Services to (a) send spam or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive, or tortious material, including material harmful to children or violating third-party privacy rights; or (c) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs, or to distribute malware on Lithium Digital’s computer systems, the systems of Lithium Digital’s third-party service providers or vendors, or to otherwise attempt to upload and/or distribute malware.
4.3 Restrictions: Customer shall not:
(a) Adapt, alter, modify, improve, translate, or create derivative works of Lithium Digital Services (or any part thereof, including the Lithium Digital Technology).
(b) Reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct or obtain the source code for all or any portion of Lithium Digital Services.
(c) Provide, maintain access to, or use Lithium Digital Services in any manner inconsistent with the terms of this Agreement.
4.4 Customer Inputs Restrictions: The Lithium Digital Services provide the Customer with the ability to upload Customer Inputs. The Customer is solely responsible for all Customer Inputs. Customer represents, warrants, and commits to the following:
(i). Customer and its Users have all the necessary rights and licenses to upload Customer Inputs, grant the licenses as provided under this Agreement, and enable each party to exercise its rights and fulfill its obligations under this Agreement.
(ii). Customer Inputs will not infringe upon the patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights of others.
(iii). Customer Inputs will not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance, or regulation, including applicable personal data protection laws.
(iv). Customer Inputs will not become unlawful, tortious, fraudulent, defamatory, or harmful to minors, obscene, pornographic, or offensive as determined solely at the discretion of Lithium Digital.
(v). Customer Inputs will not violate Customer’s own privacy policy or collect information from Users in any manner to which Users have not consented.
(vi). Customer Inputs will not misrepresent the source of the Customer Inputs.
(vii). Customer Inputs will not disclose or provide information protected under any law, agreement, or fiduciary relationship, including, but not limited to, proprietary or confidential information of others for which Customer does not have the right or license to use and provide Lithium Digital with the rights granted under this Agreement.
(viii). Customer Inputs will not misrepresent the Customer’s identity in any way.
(ix). Customer Inputs will not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or harmful components intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
(x). Customer Inputs will not advocate or encourage any illegal activity and will not violate, or encourage any conduct that would violate, any applicable law or regulation or give rise to civil liability.
5. FEES AND PAYMENT
5.1 Fees: In exchange for the rights granted under this Agreement, Customer agrees to pay Lithium Digital the applicable usage and subscription fees as outlined on the Lithium Digital website [https://lithiumdigital.com]. Payment of all platform subscription and usage fees shall be made via Credit Card, bank account transfer, or cryptocurrency payment at the time of purchase and at the end of each billing period. All fees are non-refundable, except as expressly provided otherwise in this Agreement. These fees will be denominated in U.S. dollars and do not include any applicable sales, use, or other taxes.
5.2 Taxes: Customer shall make all payments to Lithium Digital without any withholding taxes, and any such taxes imposed on fee payments to Lithium Digital shall be the sole responsibility of Customer. Customers shall provide Lithium Digital with official receipts issued by the relevant taxing authority, or such other evidence as Lithium Digital may reasonably request, to confirm the payment of such taxes.
6. CONFIDENTIALITY
6.1 Confidential Information: During the Term of this Agreement, each party (referred to as the "Disclosing Party") may, from time to time, disclose certain information about its business to the other party (referred to as the "Receiving Party"). This information may include, but is not limited to, technical, marketing, financial, employee, planning, and other confidential or proprietary information. Such information may be disclosed orally, in writing, or visually, and it may either be explicitly marked or designated as confidential, identified in writing as confidential at the time of disclosure, or reasonably understood to be confidential or proprietary by the Receiving Party based on the circumstances of the disclosure.
To clarify, the Lithium Digital Blockchain Managed Services, Lithium Digital Technology, Lithium Digital API, and Lithium Digital Enterprise are considered Confidential Information of Lithium Digital. Similarly, the Customer Inputs are considered Confidential Information of Customer.
6.2 Protection of Confidential Information: The Receiving Party shall not utilize any Confidential Information of the Disclosing Party for any purpose other than what is explicitly allowed under this Agreement. The Confidential Information of the Disclosing Party will only be disclosed to Receiving Party employees who require access to such information for the purposes outlined in this Agreement and who are bound by confidentiality obligations that are at least as restrictive as those set forth herein.
The Receiving Party shall:
(a) Safeguard the Confidential Information of the Disclosing Party from unauthorized use, access, or disclosure using the same level of care as it uses to protect its own confidential or proprietary information of a similar nature, and no less than reasonable care.
(b) Promptly notify the Disclosing Party upon discovering any loss, unauthorized access, disclosure, or duplication of the Confidential Information, or any breach of this Agreement, including misappropriation of the Confidential Information.
Both parties acknowledge that any violation of this Article 6 (Confidentiality) could cause irreparable harm to the Disclosing Party. Unauthorized use of Confidential Information for purposes other than those specified herein may, among other things, enable the Receiving Party or third parties who receive such Confidential Information to engage in unfair competition with the Disclosing Party. Therefore, in the event of a breach or potential breach, the Disclosing Party shall be entitled to seek, in addition to any other available legal or equitable remedies:
(i) An injunction to prevent such breach, without the need to demonstrate actual damages or provide security or bonds.
(ii) An order for the specific performance of the relevant provision of this Agreement.
Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party concerning the Confidential Information of the Disclosing Party shall remain in effect as follows:
(A) In the case of information or materials that qualify as trade secrets under applicable law, for as long as such information and materials retain their status as trade secrets.
(B) For all other information or materials, during the Term of this Agreement and for a period of five (5) years after the termination or expiration of this Agreement.
6.3 Exceptions: The Receiving Party’s obligations as outlined in this section shall not apply to any part of the Disclosing Party’s Confidential Information if the Receiving Party can provide documented evidence that such information falls into one of the following categories:
(a) The information was already lawfully known by the Receiving Party at the time of disclosure by the Disclosing Party.
(b) The information was disclosed to the Receiving Party by a third party who had the right to make such disclosure without imposing any confidentiality restrictions.
(c) The information has become generally available to the public or has become so through no fault of the Receiving Party.
(d) The information was independently developed by the Receiving Party without using or referencing the Confidential Information provided by the Disclosing Party.
Additionally, the Receiving Party is permitted to disclose the Confidential Information of the Disclosing Party in the following situations:
(i) When such disclosure is approved in writing by the Disclosing Party.
(ii) When it is necessary for the Receiving Party to enforce its rights under this Agreement in relation to a legal proceeding.
(iii) When required by law or by a court order, or a similar judicial or administrative body. In such cases, the Receiving Party must promptly and in writing notify the Disclosing Party of the required disclosure and cooperate with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action aimed at contesting or limiting the extent of such required disclosure.
6.4 Return of Confidential Information: The Receiving Party shall promptly return to the Disclosing Party all Confidential Information belonging to the Disclosing Party that is in the possession or under the control of the Receiving Party. Additionally, the Receiving Party will permanently erase all electronic copies of such Confidential Information upon either the written request of the Disclosing Party or upon the expiration or termination of this Agreement, whichever occurs first. Upon the Disclosing Party’s request, the Receiving Party will provide written certification, signed by an officer of the Receiving Party, confirming full compliance with its obligations as outlined in this subsection.
7. WARRANTIES
7.1 Warranties by Both Parties: Each party hereby represents and warrants that:
(a) It possesses full power and authority to execute and fulfil the terms of this Agreement.
(b) The individual signing this Agreement on behalf of the party has received proper authorization and empowerment to execute this Agreement.
(c) It shall carry out its obligations and exercise its rights under this Agreement in compliance with all applicable laws, regulations, rules, and guidelines, including, but not limited to, those pertaining to privacy and data security.
7.2 Lithium Digital Services Warranty: Lithium Digital hereby represents, warrants, and assures that Lithium Digital Services will encompass the functionalities as outlined in the Lithium Digital Documentation.
8. INDEMNIFICATION
8.1 Lithium Digital Indemnity: Lithium Digital shall, at its own expense, defend the Customer against third-party Claims of copyright or trade secret infringement due to Customer’s usage of Lithium Digital Services per the Documentation. Liability is capped at the total amount paid by the Customer for the Services during the period of usage, up to a maximum of 12 months. In case of an infringement claim, Lithium Digital may modify the Services, obtain continued usage rights, or terminate the Agreement with a refund of prepaid, unused Subscription fees. Liability exclusions encompass claims from unauthorized use, modifications by third parties, breaches of Agreement by Customer, open-source software issues, and actions predating or postdating this Agreement. Lithium Digital shall not be liable for any claim arising from various situations, including but not limited to:
(i) Claims lacking specificity regarding Lithium Digital Services as the basis;
(ii) The combination of Lithium Digital Services with software, hardware, or other materials not developed by Lithium Digital if such combination causes infringement;
(iii) Modifications to Lithium Digital Services by a party other than Lithium Digital, if unmodified Lithium Digital Services would not have caused infringement;
(iv) Breaches of Customer’s obligations under this Agreement or unauthorized use of Lithium Digital Services;
(v) Claims related to open-source software or Customer Inputs;
(vi) Claims arising before the execution of this Agreement or after its expiration or termination, or claims based on actions by Customer before the execution of this Agreement or after its expiration or termination.
The above provisions constitute Lithium Digital’s entire liability and Customer’s exclusive remedy for intellectual property rights infringement.
8.2 Indemnification Process: The indemnification obligations mentioned above are subject to the following conditions:
(a) The indemnified party must promptly notify the indemnifying party in writing of any such action.
(b) The indemnified party should reasonably cooperate and assist in the defence at the indemnifying party’s expense.
(c) The indemnified party should grant sole control of the defence and any related settlement negotiations to the indemnifying party, with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise harms the indemnified party’s interests without the indemnified party’s prior written consent.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE STATEMENT OF WORK OR THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
9.2 Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
9.3 Exclusions. The foregoing limitations shall not apply to (i) amounts payable by Customer to Lithium Digital under an Order Form or Statement of Work, (ii) liability arising from the indemnification obligations in Section 8, (iii) damages arising from a breach by Customer of Section 3.1, 3.2, 3.3, or 4, (iv) damages arising from misappropriation of a party’s Intellectual Property Rights; or (iv) damages arising from a party’s gross negligence or wilful misconduct.
9.4 Savings Clause. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other party or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.
9.5 Limitation of Action. To the maximum extent permitted by applicable law and except for actions for non-payment or breach of either party’s Intellectual Property Rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the cause of action has accrued.
9.6 Allocation of Risk. Each party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without these limitations on its liability.
10 TERM AND TERMINATION
10.1 Term. The term of this Agreement will commence on the Effective Date and remain in effect as long as subscription and usage fee are paid (“Term”).
10.2 Termination. (a) The termination of this Agreement can be requested by the User at any time, upon which the User will be asked to pay any outstanding amount owed, after which no further charges will be incurred by the User.
(b) This Agreement may be terminated by Lithium Digital if Customer fails to make any payment due hereunder in a timely manner and does not remedy such default within fifteen (15) days after receiving written notice from Lithium Digital regarding such failure (whether or not Lithium Digital exercises its right to suspend Services pursuant to Section 10.3 hereof).
10.3 Suspension of Services. At any time during the Term, Lithium Digital may, immediately upon notice to Customer, suspend its performance under this Agreement and any Order Form or may suspend any and all Users’ access to Lithium Digital Services, at Lithium Digital’s sole reasonable discretion, including, without limitation, for any of the following reasons: (a) a reasonable threat to the technical security or technical integrity of Lithium Digital Services exists as determined by Lithium Digital in its sole and absolute discretion; provided that Lithium Digital promptly recommences performance upon the cessation of the threat, or (b) if any amount due under this Agreement is not received by Lithium Digital within fifteen (15) days after it was due and Lithium Digital provided written notice of the same.
10.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Lithium Digital prior to the effective date of termination. In the event of termination by Lithium Digital pursuant to Section 10.2(a) or 10.2(b), all amounts payable by Customer under this Agreement will become immediately due and payable.
10.5 Rights and Obligations. Upon Expiration or Termination. Upon expiration or termination of this Agreement, User’s right to access and use Lithium Digital Services will immediately terminate, User will immediately cease all use of Lithium Digital Services, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Upon expiration or termination of this Agreement, Lithium Digital will cease use of the Customer’s name, logo, and trademarks (“Customer Marks”); provided, however, that (a) Lithium Digital will have a reasonable time to remove the Customer Marks from promotional materials, and (b) Lithium Digital will not be required to remove any printed materials from circulation.
11. GENERAL
11.1 Governing Law; Jurisdiction. This Agreement and any action related thereto will be governed and interpreted by and under the laws of England. Each party hereby consents to the personal jurisdiction and venue in the courts of England.
11.2 Export; Anti-Corruption. Each party shall comply with the export laws and regulations of England and other applicable jurisdictions in providing and using Lithium Digital Services. Without limiting the foregoing, (i) each party represents that it is not named on any England government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Lithium Digital Services in violation of any England export embargo, prohibition, or restriction. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Lithium Digital’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Lithium Digital.
CONTACT INFORMATION
If you have any questions about this Terms of Service, please contact us via info@lithiumdigital.com.