CUDOS Markets PLATFORM TERMS
The objective of the CUDOS Markets Platform is to:
- act as a marketplace to introduce and link buyers and sellers of NFT Products
- provide sellers of NFT Products with the opportunity to receive all necessary services from CUDOS Markets to correctly offer their NFT Products
- provide sellers of NFT Products with a marketplace to sell NFT Products directly to buyers.
A summary of the CUDOS Markets fees and their associated services can be found in Appendix A.
1. Understanding these Platform Terms
1.1 These Platform Terms are divided into four parts:
1.1.1 Part 1: the definitions, rules of interpretation and general terms of the Cudos Markets Platform, comprising this clause 1.1.1 and Part 1 of these Platform Terms (together, the “General Terms“). The General Terms apply to all Users in the context of the Purchase Contract, the Seller Contract and/or the Terms of Use, as applicable. The General Terms contain certain words and phrases that are used throughout these Platform Terms and which have specific meanings (these are known as defined terms). Users can identify these defined terms because they start with capital letters (even if they are not at the start of a sentence). Except where defined elsewhere in these Platform Terms, where a defined term is used anywhere in these Platform Terms, it has the meaning given to it in Part 1. As well as defined terms, Part 1 also contains some further rules of interpretation to help with understanding these Platform Terms.
1.1.2 Part 2: the terms between the Seller and Buyer for the purchase of NFT Products on the Cudos Markets Platform comprising this clause 1.1.2 and Part 2 of these Platform Terms (together, the “Terms of Sale“). A Purchase Contract will become binding on the applicable Buyer and the applicable Seller (which shall incorporate the General Terms, Terms of Sale and any Special Terms) when the Buyer submits an Order via the Cudos Markets Platform which is automatically accepted (by Cudos Markets acting on the Seller’s behalf as described in clause 12.5). As set out in clause 11.1, Cudos Markets is not a party to any Purchase Contract, which in each case is a contract solely between the applicable Buyer and the applicable Seller (and we do not have any rights or obligations under any Purchase Contract). The Terms of Sale also set out the terms on which a Buyer, if they become a Secondary Seller, will (amongst other things) be required to pay a Secondary Resale Royalty to the Primary Seller from whom an NFT Product was originally purchased if they subsequently dispose of the NFT Product.
1.1.3 Part 3: the terms between Cudos Markets and the applicable Seller comprising this clause 1.1.3 and Part 3 of these Platform Terms (together, the “Seller Terms“). The Seller Terms set out the terms under which Cudos Markets permits Sellers to establish and operate Activated Seller Accounts and Activated Seller Profiles on the Cudos Markets Platform and receive the applicable services. A Seller Contract will become binding on the applicable Seller and Cudos Markets (which shall incorporate the General Terms, the Seller Terms and any information provided on the registration page of the Activated Seller Profile (at the time of activation by Cudos Markets in accordance with these Platform Terms, subject to clause 27.5)) on completion of the following activities: the applicable Seller successfully submits a request to register its Seller Account via the CUDOS Markets Platform and CUDOS Markets accepts this request, as further described in clause 23. The Buyer is not a party to any Seller Contract, which in each case is a contract solely between CUDOS Markets and the applicable Seller (and the Buyer does not have any rights or obligations under any Seller Contract).
1.1.4 Part 4: the terms of use comprising this clause 1.1.4 and Part 4 of these Platform Terms (“Terms of Use“). The Terms of Use describe how Users may: (a) access and use the CUDOS Markets Platform and the content on it, which includes buying and selling NFT Products; and (b) interact with the CUDOS Markets Platform by (for example) submitting comments, images, videos or any other type of material. By using the CUDOS Markets Platform, each User confirms that they accept the Terms of Use (which for: (i) Users comprising Sellers, such Users will comply with as part of each applicable Seller Contract; (ii) Users comprising Buyers, such Users will comply with as part of each applicable Purchase Contract; and (iii) any other Users, such Users agree to comply with the Terms of Use and, in such circumstances, the Terms of Use shall be governed by and incorporate the General Terms).
1.2 In addition to clause 1.1 above, please note that we only use User personal information, and we use cookies on the CUDOS Markets Platform, in accordance with our privacy and cookies policy (available at cudosmarkets.com/privacy-policy).
PART 1: GENERAL TERMS
2. BACKGROUND
2.1 We are CUDOS Markets Limited, a company registered in the British Virgin Islands under company number 2105737, with its trading address at Trinity Chambers, Wickhams Cay II, Road Town, Tortola, British Virgin Islands (“we“, “us” or “our“). We operate the website [INSERT LINK] which allows users to engage and interact with CUDOS Markets and each other for the purpose of buying and selling the NFT Products (as defined in clause 3.1) (the “CUDOS Markets Platform“).
3. DEFINITIONS
3.1 In these Platform Terms the following terms have the meanings ascribed to them in this clause 3 (in addition to terms defined elsewhere in these Platform Terms):
“Account” means, as the context requires, a registered Buyer Account or an Activated Seller Account used to access and use the services available on the CUDOS Markets Platform;
“Account Registration” means to successfully connect an CUDOS Markets Platform-compatible Buyer Wallet (or Buyer Wallets) to the CUDOS Markets Platform, and (if required by CUDOS Markets) to sign up and register for a Buyer Account with personal details;
“Activated Seller Account” means a Seller Account that has been registered and activated in accordance with clause 23 that also contains an Activated Seller Profile;
“Activated Seller Profile” means the Seller Profile that has been registered, completed and activated in accordance with clause 23 where (amongst other things) Listings can be listed for Buyers to browse prior to entering into Purchase Contracts, and in relation to Primary Sellers only, that such Primary Seller uses to link its ASIC or computing machines to the relevant Mining Pool for a particular tranche of HR Output;
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with us;
“We“, “us” or “our” has the meaning as given in the Background paragraph above;
“CUDOS Markets Fees” has the meaning set out in clause 27.1.6;
“CUDOS Markets IPRs” means any and all Intellectual Property Rights arising anywhere and anyhow which vest in, derive from or are connected to: (a) the CUDOS Markets Platform (including any and all related software, source code and technology); (b) the “CUDOS Markets” and “CUDOS Markets Platform” name and marks; and (c) any artwork that is incorporated into an NFT Product;
“CUDOS Markets Maintenance Fee” means the percentage of the Maintenance Fee set out on the Activated Seller Profile registration page (at the time of activation by CUDOS Markets in accordance with these Platform Terms, subject to clause 27.5) for the applicable NFT Product that is charged by CUDOS Markets to the Primary Seller and deducted by CUDOS Markets from the Maintenance Fee (at a frequency determined by CUDOS Markets from time to time);
“CUDOS Markets Address(es)” means the Crypto Asset Address(es) owned, controlled and operated by CUDOS Markets and which receives the NFT Sale Price Deduction, the Initial NFT Sale Platform Fee, the Secondary NFT Sale Platform Fee and/or the CUDOS Markets Secondary Resale Royalty (as applicable) from the CUDOS Markets Master Value Address and the CUDOS Markets Maintenance Fee and/or the Pool Fees (as applicable) from the Primary Seller CUDOS Markets Address;
“CUDOS Markets Personnel” means CUDOS Markets’s and its affiliates’ employees, directors, officers, agents and subcontractors;
“CUDOS Markets Platform” has the meaning as given in the Background paragraph above;
“CUDOS Markets Master Value Address(es)” means a Crypto Asset Address owned, controlled and operated by CUDOS Markets and which receives the NFT Sale Price to process and pay to the relevant recipients’ Crypto Asset Addresses;
“CUDOS Markets Secondary Resale Royalty” means the percentage of the Secondary Resale Royalty set out on the Activated Seller Profile registration page (at the time of activation by CUDOS Markets in accordance with these Platform Terms, subject to clause 26.5) for the applicable NFT product that is charged by CUDOS Markets to the Primary Seller and deducted by CUDOS Markets from the Secondary Resale Royalty;
“Blockchain Minting Module” means the blockchain functionality used, in respect of Primary Sales, to mint the NFT Products linked to the Seller’s respective Listings and which is deployed on a Crypto Asset Supported Network;
“Business” means any person who accesses and/or uses the CUDOS Markets Platform for purposes that are not wholly or mainly outside of their trade, business, craft or profession;
“Buyer” means any person who uses the CUDOS Markets Platform to purchase an NFT Product through placing an Order;
“Buyer Account” means an CUDOS Markets Platform account of a Buyer that has completed Account Registration;
“Buyer Wallet” means an CUDOS Markets Platform-compatible Wallet(s) owned, controlled and operated by the relevant Buyer that is associated with a Crypto Asset Address and the Buyer Account and from which the Charges are remitted, either directly or indirectly to the CUDOS Markets Master Value Address and/or to which the NFT Product are Transferred and/or to which the Net HR Rewards are Transferred, in accordance with these Platform Terms;
“Charges” means (as applicable) the: (a) Gas Fees; and (b) NFT Sale Price, all exclusive of VAT;
“Cloud Mining Farm” means a collection of one or more a Primary Seller’s ASIC or computing machines that are specifically designed to mine Crypto Assets and which, via the CUDOS Markets Platform and in accordance with these Platform Terms, are linked to the Mining Pool;
“Consumer” means any person: (a) whose place of habitual residence is within the United Kingdom or any European Union Member State; and (b) accesses and uses the CUDOS Markets Platform for purposes that are wholly or mainly outside of their trade, business, craft or profession;
“Control” means, in respect of any corporate entity, the beneficial ownership of more than 50% of the issued share capital of that entity or the legal power to direct or cause the direction of the general management of that entity, and “Controls” and “Controlled” shall be construed accordingly;
“Crypto Asset” means, as the context requires, the NFT Products or any other digital currency or asset maintained by a Crypto Asset Supported Network, and “Crypto Assets” shall be constructed accordingly;
“Crypto Asset Address” means any address that can receive, hold and interact with (when applicable) a given Crypto Asset as part of the Crypto Asset Supported Network;
“Crypto Asset Supported Network” means the blockchain networks which are supported by the CUDOS Markets Platform;
“Default” means any act, event or omission, or series of connected acts, events or omissions, which results in CUDOS Markets incurring a liability to the relevant Primary Seller or Secondary Seller (as applicable) under or in relation to the relevant Seller Contract, including liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including negligence), breach of statutory duty or otherwise;
“Effective Novation Date” has the meaning set out in clause 12.8;
“Event Outside Of Control” means any act or event beyond a party’s reasonable control;
“Gas Fees” means the third party fee required for processing a transaction by the applicable Crypto Asset Supported Network;
“General Terms” has the meaning given in clause 1.1.1 of these Platform Terms;
“HR” means hash rate, a measure of the computational power output used to mine a given mineable Crypto Asset measured in powers of hash units produced over 1 second;
“HR Target Threshold” means the average HR output associated with the relevant NFT Product (measured over each calendar month) that the Primary Seller commits to contribute to the Mining Pool during the relevant Term, as stated in the applicable Listing;
“HR Output” means the total HR output of the applicable Cloud Mining Farm which the Primary Seller commits to contribute to the Mining Pool, used by the Primary Seller to set the HR Output Portion associated with each relevant NFT Product and stated in the applicable Listing;
“HR Output Portion” has the meaning set out in the definition of NFT Product below;
“HR Reward” means the rewards paid in Crypto Asset that are attributable to the relevant Primary Seller’s HR Output and remitted by the Mining Pool to the Primary Seller CUDOS Markets Address (taking into account any commission deducted by the Mining Pool);
“Initial NFT Sale Platform Fee” means the percentage of the sale price of an NFT Product that is set out on the applicable Primary Seller’s Activated Seller Profile page for such NFT Product and deducted from the NFT Sale Price as a fee charged by CUDOS Markets to the Primary Seller and received by the CUDOS Markets Address;
“Intellectual Property Rights” means any and all present and future, patents, inventions, know-how, trade secrets and other confidential information, trademarks, service marks, logos, emblems, badges, mascots, insignia, identifying music and sounds, get-up, domain names, business names, trade names, moral rights, performance rights, registered designs, copyrights, database rights, the sui generis rights of extraction relating to databases, design rights and other intellectual property rights of whatever nature, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world) and related goodwill;
“Interactive Feature” means any interactive feature on the CUDOS Markets Platform that enables Users to upload User Generated Content, including comment facilities, chat rooms and/or bulletin boards;
“KYC Provider” means any third party know-your-client provider that CUDOS Markets may engage with from time to time for the purposes of carrying out security checks as part of the Seller Registration Process prior to Seller Account activation on the CUDOS Markets Platform;
“Listing” means the listing of the NFT Product on the Activated Seller Profile on the CUDOS Markets Platform containing information such as the name of the Seller, the HR Output Portion and HR Target Threshold associated with the NFT Product, the Maintenance Fee, the Pool Fee, any Secondary Resale Royalty and the Term;
“Losses” means liabilities, damages, claims, actions, proceedings, losses and reasonable costs (including legal fees) and expenses;
“Maintenance Fee” means the monthly permitted deduction amount set by the Primary Seller that is associated with the applicable NFT Product and deducted from relevant HR Rewards in instalments across the relevant month from the HR Reward (together with the Pool Fees), which is set out in the applicable Listing;
“Mining Pool” means the relevant aggregator mining pool that CUDOS Markets may change in its discretion from time to time and which receives the Seller’s HR Output and provides HR Rewards to the Primary Seller CUDOS Markets Address;
“Net HR Rewards” has the meaning set out in clause 15.6;
“NFT Artwork” has the meaning set out in clause 22.1;
“NFT Product” means a non-fungible token implemented on a Crypto Asset Supported Network which uses the Blockchain Minting Module to link to or otherwise be associated with certain content or data including: (a) the HR Target Threshold associated with the NFT Product; (b) the percentage of the HR Output contribution that is available for a Buyer to purchase (should they choose to purchase such NFT Product) as part of an Order and is associated with the relevant NFT Product (the “HR Output Portion”); and (c) the Term during which the Net HR Rewards associated with the HR Output Portion of NFT Product (in accordance with clause 15.14) will be available to the owner of such NFT Product; and (d) the url associated with any NFT Artwork (if applicable);
“NFT Sale Price” means the price of an NFT Product as stated in the applicable Listing at the time of an Order;
“NFT Sale Price Deduction” means the percentage of the NFT Sale Price, as communicated by CUDOS Markets to the Primary Seller (via the Activated Seller Profile registration page (at the time of activation by CUDOS Markets in accordance with these Platform Terms, subject to clause 27.5)), that is deducted as a fee charged by CUDOS Markets to the Primary Seller and held by CUDOS Markets for the Term and which may be paid by CUDOS Markets to the Primary Seller in accordance with these Platform Terms upon expiry of the relevant Term (in CUDOS Markets’s sole discretion);
“Order” means an order for an NFT Product placed by a Buyer (via the applicable Buyer Account) with the applicable Seller;
“Original Purchase Contract” has the meaning set out in clause 12.8;
“Platform Terms” means clause 1 and all four parts of these terms and conditions together;
“Pool Fee” means the percentage of the HR Reward associated with the relevant NFT Product, set out on the Seller’s Activated Seller Profile registration page (at the time of activation by CUDOS Markets in accordance with these Platform Terms, subject to clause 27.5) for the applicable NFT Products and communicated to Buyers in the relevant Listing, that is deducted as a fee charged by CUDOS Markets to the Primary Seller (if any) from the HR Reward (before the pro rata Maintenance Fees are also deducted);
“Pre-Contractual Statements” means any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of CUDOS Markets or the applicable Seller in relation to the subject-matter of the relevant Seller Contract at any time before it being entered into other than those which are set out in the Seller Terms;
“Primary Sale” means the first sale of an NFT Product (pursuant to which the applicable NFT Product is minted);
“Primary Seller” means any person offering NFT Products for sale via an Activated Seller Profile on the CUDOS Markets Platform that is not a Secondary Seller;
“Primary Seller CUDOS Markets Address” means the Crypto Asset Address that is controlled by CUDOS Markets and receives the HR Reward from the Mining Pool relating to the relevant Primary Seller;
“Purchase Contract” means a contract concluded between a Buyer and a Seller in relation to an Order which is governed by and incorporates the Terms of Sale, General Terms, and Special Terms;
“Sanctions” as in force from time to time any legally binding economic, financial, trade or other sanction, embargo, import or export ban, prohibition on receipt or transfer of funds or assets or on performing services, or equivalent treaty, law, regulation, decree, ordinance, order, directive, policy, rule or requirement imposed by a Sanctions Authority from time to time to the extent applicable to the performance of the relevant party’s obligations under these Platform Terms (as applicable);
“Sanctions Authority” means (a) the United Nations Security Council; (b) the United States of America; (c) the European Union; (d) the United Kingdom; and (e) the governments and official institutions of any of paragraphs (a) to (d) above, including but not limited to, Office of Foreign Assets Control of the US Department of the Treasury (“OFAC”), the US Department of State, the US Department of State and the US Department of Commerce’s Bureau of Industry and Security, the Office of Financial Sanctions Implementation (“OFSI”) of Her Majesty’s Treasury of the United Kingdom (“HMT”), the Foreign, Commonwealth and Development Office (“FCDO”) or other relevant sanctions authority of (a) to (d) above, and the term “Sanctions Authority” shall be construed so as to include any assignee, transferee or successor in title of that Sanctions Authority and any other person which takes over the administration, enforcement and/or supervising functions of that Sanctions Authority, but in each case only to the extent that the relevant Sanctions Authority imposes Sanctions applicable to the relevant party and the performance of its obligations under these Platform Terms (as applicable);
“Sanctioned Person” any person that: (a) is subject to or the target of Sanctions; or (b) appears on or is, directly or indirectly, owned or controlled by or acting on behalf of any person (or, where relevant, persons) who appears on any list issued or maintained by a Sanctions Authority as amended, supplemented or substituted from time to time.
“Sanctions Proceedings” means any actual or threatened: (a) litigation, arbitration, settlement or other proceedings (including alternative dispute resolution, criminal and administrative proceedings); or (b) investigation, inquiry, enforcement action (including the imposition of fines or penalties) by any governmental, administrative, regulatory or similar body or authority, in each case relating to, or in connection with, any actual or alleged contravention of Sanctions;
“Secondary NFT Sale Platform Fee” means the percentage of the sale price of an NFT Product that is set out on the applicable Secondary Seller Activated Seller Profile page and deducted from the NFT Sale Price as a fee charged by CUDOS Markets to the Secondary Seller and received by the CUDOS Markets Address;
“Secondary Resale Royalty” means, in respect of a Secondary Sale, a percentage of the NFT Sale Price payable by the Secondary Seller (by CUDOS Markets acting on behalf of the Secondary Seller) on the sale of an NFT Product from the Seller (being a Secondary Seller) to the original Primary Seller of such NFT Product, with the amount of such royalty being shown in the Listing for such NFT Product, subject to deduction of any applicable CUDOS Markets Secondary Resale Royalty;
“Secondary Sale” the sale of an NFT Product from a Secondary Seller to a Buyer;
“Secondary Sale Contract” has the meaning set out in clause 12.8;
“Secondary Seller” means any person offering an NFT Product for sale via an Activated Seller Profile on the CUDOS Markets Platform and who originally purchased such NFT Product from another Seller;
“Seller” means, as the context requires, either a Primary Seller or a Secondary Seller;
“Seller Account” means a CUDOS Markets Platform account of a Seller ;
“Seller Contract” means the contract between CUDOS Markets and a Seller in relation to the operation of such Seller’s Activated Seller Profile and the services received by the Seller on the CUDOS Markets Platform which is governed by and incorporates the Seller Terms, the General Terms and any information provided on the registration page of the Activated Seller Profile (at the time of activation by CUDOS Markets in accordance with these Platform Terms, subject to clause 27.5);
“Seller IPRs” means all Intellectual Property Rights in the Seller’s name, Seller’s logo, Seller’s Profile, Listing, NFT Product (save for any CUDOS Markets IPRs incorporated therein) or associated information;
“Seller Profile” means the Seller profile on the CUDOS Markets Platform;
“Seller Registration Process” has the meaning given in clause 23.6;
“Seller Terms” has the meaning given in clause 1.1.3 of these Platform Terms;
“Seller Wallet” means any Wallet owned, controlled and operated by the relevant Seller that is associated with a Crypto Asset Address and the Activated Seller Account and which receives one or more of the following, amongst other things: (i) in respect of Primary Sellers, the NFT Sale Price (less the Initial NFT Sale Platform Fee and the NFT Sale Price Deduction), the Maintenance Fee (less the CUDOS Markets Maintenance Fee), the Secondary Resale Royalty (less the CUDOS Markets Secondary Resale Royalty); (ii) in respect of Secondary Sellers, the NFT Sale Price (less the Secondary NFT Sale Platform Fee and the Secondary Resale Royalty); and (iii) in respect of any NFT Product which has not been sold, the relevant HR Rewards less any Pool Fees, where relevant.
“Special Terms” means any additional terms and conditions specified by a Seller on their Activated Seller Profile when a Buyer submits an Order in accordance with clause 12;
“Tax Liability” means in relation to the Users, any liability of CUDOS Markets, or of any other CUDOS Markets affiliate, to withhold or account to the relevant tax authority for any amount of, or representing, withholding tax, income tax or social security, or any equivalent tax in any jurisdiction, which may arise upon Transfer of any Crypto Asset;
“Term” means the duration of time that the Primary Seller expects to provide the HR Output Portion associated with the NFT Product (and in relation to which the Buyer will receive any associated Net HR Rewards) and which is stated in the Listing, subject to earlier termination of the Purchase Contract;
“Terms of Sale” has the meaning given in clause 1.1.2 of these Platform Terms;
“Terms of Use” has the meaning given in clause 1.1.4 of these Platform Terms of these Platform Terms;
“Territory” means worldwide, except the United States of America, Albania, Barbados, Jamaica, Uganda, Zimbabwe, Nicaragua, Myanmar, Mauritius, Botswana, Cambodia, Democratic People’s Republic of Korea, Ethiopia, Ghana, Iran, Pakistan, Panama, Seychelles, Sri Lanka, Syria, Thailand, Trinidad and Tobago, Tunisia, Yemen. and any territory in which the minting, promotion, sale and/or use of an NFT Product is unlawful;
“Transaction” means an instruction by CUDOS Markets to the relevant Crypto Asset Supported Network for the transfer of the relevant Crypto Assets to a Crypto Asset Address in accordance with these Platform Terms;
“Transaction Hash” means the unique string of characters that can be used to provide evidence that a particular transaction (including for the avoidance of doubt any Transaction) has been sent to the relevant Crypto Asset Supported Network and to confirm that a particular transaction (including for the avoidance of doubt any Transaction) has been performed;
“Transfer” means CUDOS Markets: (a) sending a Transaction to the Crypto Asset Supported Network; and (b) providing the User with the Transaction Hash relating to the relevant Transaction (and “Transferring” and “Transferred” shall be construed accordingly);
“Usage Term” has the meaning set out in clause 22.2;
“User” means a Seller, a Buyer or any other person browsing or otherwise using the CUDOS Markets Platform, and “You” or “Your” shall refer to the relevant User (as applicable);
“User Generated Content” means any content of any nature – including pictures, text, sound recordings or video – that a User supplies/uploads to the CUDOS Markets Platform; and
“Wallet” a digital solution that is associated with a Crypto Asset Address and that is owned, controlled or operated by a person and enables the relevant authorised User of such solution to send instructions to the relevant Crypto Asset Supported Network and which (amongst other things) provides a record of the Crypto Assets associated with the Crypto Asset Address associated with it.
4. RULES OF INTERPRETATION
4.1 In these Platform Terms:
4.1.1 “company” means any body corporate and “subsidiary” and “holding company”- shall be construed in accordance with section 1159 of the Companies Act 2006;
4.1.2 the clause headings are for convenience only and shall not affect the interpretation of these Platform Terms;
4.1.3 references to “clauses” are to clauses in the main body of the Platform Terms;
4.1.4 use of the singular includes the plural and vice versa and references to one gender means all genders;
4.1.5 any references to a “person” or “entity” shall be construed so as to include any individual, firm, company or other body corporate, government, state or agency of a state, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality);
4.1.6 any reference to a statute, statutory provision, subordinate legislation, code or guideline (“legislation”) is a reference to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation;
4.1.7 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
4.1.8 in writing includes by email unless otherwise indicated;
4.1.9 if a User is acting as a Business when they access and/or use the CUDOS Markets Platform, they represent and warrant that:
4.1.9.1 they have full legal authority to bind their employer or the applicable business; and
4.1.9.2 they agree to these Platform Terms on behalf of any business they represent.
5. CHANGES TO THESE PLATFORM TERMS
5.1 We may make changes to any part of these Platform Terms from time to time (if, for example, there is a change in the law that means we need to change these Platform Terms). If you have an email address registered to your Account, we will provide you with at least fifteen (15) days’ advance notice of any material changes to the Platform Terms unless the change is due to a change in law or for security reasons (in which case we may need to change the Platform Terms on shorter notice). If you do not have an email address registered to your Account, we will post information regarding any material changes to the Platform Terms on the CUDOS Markets Platform at least fifteen (15) days in advance of such changes taking effect (unless the change is due to a change in law or for security reasons (in which case we may need to change the Platform Terms on shorter notice).We may make minor changes to the Platform Terms that do not materially affect a User’s rights or obligations under these Platform Terms from time to time, and shall use reasonable endeavours to notify Account holders of such changes (where an email address is registered to their Account) or post such changes on the CUDOS Markets Platform, but with no requirement for advance notice.
5.2 Please check these Platform Terms regularly to ensure that you understand the terms that apply at the time that you access and use the CUDOS Markets Platform or enter into any Purchase Contract or Seller Contract.
5.3 For the avoidance of doubt, (i) in respect of a Purchase Contract, the Terms of Sale, General Terms and Special Terms applicable at the time of you submit an Order will apply to that Purchase Contract; (ii) in respect of a Seller Contract, the Seller Terms, General Terms, and the information provided on the Activated Seller Profile registration page in each case at the time of activation by CUDOS Markets in accordance with these Platform Terms, subject to clause 27.5 , will apply to that Seller Contract, save as amended pursuant to clause 5.1 (it being acknowledged that no such amendment made pursuant to clause 5.1 will affect the rights or obligations of a Seller to, or in respect of, a Buyer under a Purchase Contract); and (iii) subject to clause 5.1, in respect of Users’ access to, or interaction with, the CUDOS Markets Platform (other than in connection with a Purchase Contract or a Seller Contract) the Terms of Use applicable at the time you access and use the CUDOS Markets Platform will apply.
6. OTHER IMPORTANT INFORMATION
6.1 Each of the clauses of these Platform Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.
6.2 If the Seller fails to insist that the Buyer performs any of their obligations under these Platform Terms, or if the Seller does not enforce its rights against the Buyer, or if the Seller delays in doing so, that will not mean that such rights have been waived against the Buyer and will not mean that the Buyer does not have to comply with those obligations. If the Seller does waive a default by the Buyer, such waiver will only be given in writing, and that will not mean that any later default by the Buyer will automatically be waived.
7. INDEMNITY
7.1 By using the CUDOS Markets Platform each User:
7.1.1 if they are a Business, agrees to fully and effectively indemnify and keep indemnified CUDOS Markets, and hold CUDOS Markets harmless, from and against any Losses suffered or incurred by CUDOS Markets arising out of or relating to the User’s use of the CUDOS Markets Platform (including any Losses arising out of or relating to any Purchase Contract or Seller Contract); and
7.1.2 if they are a Consumer, agrees that they shall be fully responsible and liable to CUDOS Markets in respect of any Losses suffered or incurred by CUDOS Markets arising out of or relating to: (a) the User’s use of the CUDOS Markets Platform other than in accordance with these Platform Terms; and (b) any Purchase Contract or Seller Contract).
8. DATA PROTECTION
We have access to User personal data (including personal data in any User Generated Content) when a User uses the CUDOS Markets Platform. We process such personal data in accordance with applicable data protection and consumer laws. For details of the categories of personal data that Users provide to us or are generated by us and are shared with other Users and third parties and for why we access and process that personal data, please see our Privacy & Cookie notice. This also describes User data protection rights, including rights to object to certain types of processing activity.
9. GOVERNING LAW AND JURISDICTION
9.1 These Platform Terms are governed by English law. This means that any User’s access to and use of the CUDOS Markets Platform pursuant to the Terms of Use, any Purchase Contract, any Seller Contract and any dispute or claim arising out of or in connection therewith (including non-contractual disputes or claims) will be governed by English law.
9.2 If you are a Business, you irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Platform Terms, the Terms of Use or any Seller Contract or their respective subject matter or formation.
9.3 If you are a Consumer entering into a Purchase Contract with a Seller who is also a Consumer, you and the Seller irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with such Purchase Contract or its subject matter or formation
9.4 If you are a Consumer then, save where you are entering into a Purchase Contract with a Seller who is also a Consumer (for which see clause 9.3):
9.4.1 You may bring any dispute which may arise under these Platform Terms, at your discretion, in either: (a) the courts of England and Wales; or (b) the competent court of your country of habitual residence if this country of habitual residence is within the UK or is an EU Member State. You agree that no other court shall have jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with such Purchase Contract or its subject matter or formation;
9.4.2 we (or the applicable Seller under a Purchase Contract) shall bring any dispute which may arise under these Platform Terms to the competent court of your country of habitual residence if this is within the UK or is an EU Member State or otherwise to the courts of England and Wales; and
9.4.3 you will benefit from any mandatory provisions of the law of the country in which you are resident. Nothing in these Platform Terms, including clause 9.1, affects your rights as a Consumer to rely on such mandatory provisions of local law.
10. CONTACTING US
10.1 If you have any questions, queries or complaints regarding the CUDOS Markets Platform, you can contact us by using the following details:
Address: CUDOS MarketsPool Holdings Ltd, Trinity Chambers, Wickhams Cay II, Road Town, Tortola, British Virgin Islands
Email address: [email protected]
PART 2: TERMS OF SALE
11. Description
11.1 The Purchase Contract is between the Buyer and the Seller from whom the Buyer wishes to place an Order corresponding to the relevant Listing on the Activated Seller Profile. CUDOS Markets is not a party to any Purchase Contract and shall have no liability under any Purchase Contract. CUDOS Markets is solely providing services to Sellers including acting as its intermediary and disclosed agent in the name of and on behalf of Sellers in facilitating the conclusion of Purchase Contracts for NFT Products that Buyers may wish to purchase from Sellers and in handling certain other obligations on the Seller’s behalf as described in these Terms of Sale.
11.2 Please note that the Purchase Contract will incorporate these Terms of Sale as well as:
11.2.1 the General Terms; and
11.2.2 any Special Terms.
Sellers are free to determine in their reasonable discretion any Special Terms save that in the event of a conflict between these Terms of Sale, the General Terms, and the Special Terms, the relevant provisions of the Terms of Sale and/or General Terms shall prevail.
12. Orders And Forming The Purchase Contract
12.1 The Buyer must be of the permitted age pursuant to clause 44.3 to place an Order.
12.2 In order to submit an Order via the CUDOS Markets Platform the Buyer must first register an Account and then follow the procedure set out on the CUDOS Markets Platform to submit an Order.
12.3 The Buyer acknowledges and agrees that the details of the applicable NFT Product contained in the Order are set out in the Listing at the time of submitting an Order, save where such terms are subject to amendment in accordance with the terms of the Purchase Contract.
12.4 The Buyer must check the Order carefully before submitting it. The Buyer is responsible for ensuring that their Order is accurate.
12.5 Subject to clause 12.8 (Novation), an Order is an offer by the Buyer to enter into a Purchase Contract with the Seller. The Order is automatically accepted by the Seller (by CUDOS Markets acting with the authority and as disclosed agent on the Sellers’ behalf) on the date of submission of the Order, at which point a Purchase Contract shall be formed and these Terms of Sale, the General Terms and the Special Terms (if applicable) and the Order shall be binding on the Buyer and the Seller. Following the formation of the Purchase Contract and subject to clause 15.1, CUDOS Markets will send or facilitate the sending to the Buyer of the NFT Product (as agent on behalf of the Seller). For the avoidance of doubt, on Formation of the Purchase Contract the Buyer shall pay the corresponding NFT Sale Price to the CUDOS Markets Master Value Address and any other applicable Charges and the Seller shall provide the NFT Product to the Buyer.
12.6 If the Buyer is a Consumer and the Seller is a Business, the Buyer has a legal right to change their mind and cancel the Purchase Contract within 14 days of the Purchase Contract being concluded without giving a reason (pursuant to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (and equivalent legislation in EU Member States)). However, by submitting an Order the Buyer is, subject to clause 15.1, requesting that the Seller mints the NFT Product and provides it to the Buyer immediately on formation of the Purchase Contract and the Buyer acknowledges and agrees that by doing so they waive their right to cancel.
12.7 If the Transaction process fails after the Order has been placed and provided the Buyer has sent the funds to the CUDOS Markets Master Value Address, the CUDOS Markets Platform will either refund the Buyer (acting with the authority and as disclosed agent of the Seller) or send the NFT Product to the Buyer within a reasonable time after the Buyer has informed the CUDOS Markets Platform about the error by written communication.
12.8 Subject to clauses 12.7 and 12.9, in respect of Secondary Sales an Order is an offer by the Buyer to accept, by way of novation, the transfer of certain rights, obligations and liabilities of the Secondary Seller (as described in this clause) under a Purchase Contract to which the Primary Seller and the Secondary Seller are both parties (the “Original Purchase Contract”). The Order is automatically accepted by the Primary Seller and Secondary Seller (by CUDOS Markets acting with the authority and as disclosed agent on the Sellers’ behalf) on the date of submission of the Order (“Effective Novation Date”), and a new contract (a “Secondary Sale Contract”) shall be formed on such date between the Buyer, the Primary Seller and the Secondary Seller pursuant to which:
12.8.1 the Secondary Seller, by way of novation, agrees to transfer its rights and obligations under the Original Purchase Contract (arising on or after the Effective Novation Date) to the Buyer;
12.8.2 the Primary Seller consents to the transfer, by way of novation, of all of the Secondary Seller’s rights and obligations under the Original Purchase Contract to the Buyer in accordance with clause 12.8.1 and agrees, on and from the Effective Novation Date, to perform the novated Original Purchase Contract and be bound by its terms in every way as if the Buyer were the original purchaser of the applicable NFT Product in place of the Secondary Seller;
12.8.3 the Buyer accepts the transfer of the Secondary Seller’s rights and obligations under the Original Purchase Contract arising on and after the Effective Novation Date in accordance with clause 12.8.1 and, on and from the Effective Novation Date, will perform the novated Original Purchase Contract, be bound by its terms and enjoy its benefits in every way as if it were the original purchaser of the applicable NFT Product in place of the Secondary Seller;
12.8.4 subject to the Secondary Seller discharging its obligations under clause 17 (Secondary Resale Royalty), each of the Primary Seller and the Secondary Seller releases and discharges the other from all future obligations under the Original Purchase Contract to the extent arising on or after the Effective Novation Date. However, nothing in the Secondary Sale Contract shall affect or prejudice any claim or demand that either the Primary Seller or the Secondary Seller has against the other relating to matters occurring before the Effective Novation Date;
12.8.5 for the avoidance of doubt, the Buyer shall pay the corresponding NFT Sale Price and any other applicable Charges from the Buyer Wallet to the CUDOS Markets Master Value Address prior to receiving the NFT Product from the Secondary Seller and being able to receive any Net HR Rewards from the Primary Seller;
12.8.6 each of the Primary Seller and the Buyer will have the right to enforce the novated Original Purchase Contract and pursue any claims and demands under it against the other with respect to matters arising on or after the Effective Novation Date, as if the Buyer were the original purchaser of the applicable NFT Product under the Original Purchase Contract instead of the Secondary Seller;
12.8.7 the novated Original Purchase Contract shall continue on its existing terms; and
12.8.8 the Secondary Sale Contract shall be governed by English law and: (a) if the Buyer is a Business (and the Seller is a Business) or the Seller is not a Business (and the Buyer is a Business or not), the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Secondary Sale Contract or its subject matter or formation; or (b) if the Buyer is a Consumer and the Seller is a Business:
(i) the Buyer may bring any dispute which may arise under the Secondary Sale Contract, at its discretion, in either the courts of England and Wales, or to the competent court of the Buyer’s country of habitual residence if this country of habitual residence is within the UK or is an EU Member State, which courts shall have exclusive jurisdiction to settle any of such dispute. The Seller shall bring any dispute which may arise under the Secondary Sales Contract to the competent court of the Buyer’s country of habitual residence if this is within the UK or is an EU Member State or otherwise to the courts of England and Wales; and
(ii) the Buyer will benefit from any mandatory provisions of the law of the country in which they are resident. Nothing in these Platform Terms, including clause 9.1, affects the Buyer’s rights as a Consumer to rely on such mandatory provisions of local law.
12.9 For the avoidance of doubt:
12.9.1 certain terms of the Original Purchase Contract will, when novated as described in clause 12.8 above, not apply as between the Primary Seller and the Secondary Buyer such as the payment of the NFT Sale Price in respect of the Primary Sale which will have already been discharged prior to the Effective Novation Date;
12.9.2 from the Effective Novation Date, the Secondary Seller shall have no further entitlement to any benefit under or pursuant to the novated Original Purchase Contract, and all rights of the Secondary Seller to receive the Net HR Rewards from the Primary Seller shall cease; and
12.9.3 the entry into force of the Secondary Sale Contract shall not trigger any return of the Primary Seller’s NFT Sale Price Deduction which shall only be paid to the Primary Seller at CUDOS Markets’s discretion (in accordance with clause 27.14) on expiry of the Original Purchase Contract (if applicable).
12.10 PLEASE NOTE: EACH BUYER AND SELLER ACKNOWLEDGES AND AGREES THAT:
12.10.1 the value of an NFT Product may go down as well as up;
12.10.2 capital gains (or equivalent) tax may be payable on the proceeds of sale of an NFT Product;
12.10.3 cryptoassets such as the NFT Products are not regulated by the UK Financial Conduct Authority, the BVI financial services regulator or protected by financial services or government compensation schemes, and nor is CUDOS Markets or the CUDOS Markets Platform regulated by the UK Financial Conduct Authority or the BVI financial services regulator, and there are no statutory insurance or government or industry compensation schemes applicable to CUDOS Markets, the CUDOS Markets Platform or any sale or purchase made on the CUDOS Markets Platform;
12.10.4 NFT Products do not carry rights that are comparable to those inherent in traditional financial instruments or security tokens;
12.10.5 CUDOS Markets makes no representation or guarantee about the value or earning potential of an NFT Product, either now or in the future (e.g. if sold on a marketplace); and
12.10.6 to the greatest extent permissible by law, CUDOS Markets excludes any liability or responsibility for any losses a Buyer or Seller may incur in respect of any sale or purchase of an NFT Product.
13. Access To The NFT Product
13.1 In consideration for the Buyer’s payment of the relevant NFT Sale Price and applicable Charges and provided the Buyer is in full compliance with these Terms of Sale, the General Terms and the Special Terms (if applicable):
13.1.1 in the case of Primary Sales, the Primary Seller agrees to sell to the Buyer the NFT Product and the Net HR Rewards (which are to be remitted by CUDOS Markets (acting as disclosed agent for the Primary Seller) to the relevant Buyer) for the duration of the Term only; and
13.1.2 in the case of Secondary Sales, the Secondary Seller agrees to sell to the Buyer the NFT Product and the Primary Seller agrees to sell to the Buyer the Net HR Rewards (which are to be remitted by CUDOS Markets (acting as disclosed agent for the Primary Seller) for the duration of the Term only).
13.2 Upon completion of the Order process and the NFT Sale Price (and any other applicable Charges for the transaction) being received by the CUDOS Markets Master Value Address by CUDOS Markets from the Buyer Wallet: (i) in respect of Primary Sales, the applicable NFT Product shall be minted by the Blockchain Minting Module and sent to the Buyer Wallet; (ii) in respect of Secondary Sales, the applicable NFT Product’s ownership shall be Transferred from the Secondary Seller Wallet to the Buyer Wallet.
14. Compliance With Terms Of Use
Each of the Buyer and the Seller must comply in full with the Terms of Use at all times. In addition, and without affecting each of the Buyer and the Seller’s obligations under the Terms of Use, the Buyer shall not copy, reproduce, share, transfer or otherwise use any information on the Seller’s Profile save as expressly permitted in the Special Terms or these Terms of Sale. For the avoidance of doubt, in respect of a Purchase Contract, the Terms of Use applicable at the time you access and use the CUDOS Markets Platform will apply.
15. Purchase Terms and Applicable Charges
NFT Sale Price
15.1 Upon entering into a Purchase Contract the Buyer (including for the avoidance of doubt the Secondary Buyer when it becomes a party to the relevant Purchase Contract pursuant to clause 12.8) shall pay the corresponding NFT Sale Price and any other applicable Charges for the transaction from the Buyer Wallet to the CUDOS Markets Master Value Address. The Buyer acknowledges and agrees that: (i) if an Order is in relation to a Primary Sale, the NFT Sale Price and any other applicable Charges for the transaction must be paid in full and in the correct Crypto Asset as stated in the Listing and these funds must be received in the CUDOS Markets Master Value Address by CUDOS Markets in order for the NFT Product to be minted correctly by the Blockchain Minting Module; and (ii) if an Order is in relation to a Secondary Sale, the NFT Sale Price and any other applicable Charges for the transaction must be paid in full and in the correct Crypto Asset as stated in the Listing and these funds must be received by the CUDOS Markets Master Value Address by CUDOS Markets in order for the NFT Product to be sent by the Secondary Seller to the Buyer. Following receipt by the CUDOS Markets Master Value Address of the applicable NFT Sale Price and Charges then, in respect of Primary Sales, CUDOS Markets (on behalf of the Seller) shall procure that the NFT Product that is the subject of the applicable Order is minted by the Blockchain Minting Module and delivered to the Buyer Wallet and, in resect of Secondary Sales, CUDOS Markets (on behalf of the Seller) shall send the NFT Product that is the subject of the applicable Order to the Buyer Wallet.
15.2 All Charges owed by the Buyer to the Seller shall be exclusive of any applicable VAT unless stated otherwise.
15.3 CUDOS Markets is authorised by each Seller to accept payment on their behalf and receipt (in cleared funds) by CUDOS Markets of a Buyer’s payment of the relevant Charges will fulfil the Buyer’s obligation to pay the Charges to the Seller.
15.4 Certain Charges or other fees (including the Maintenance Fee and Pool Fee) may be quoted in a currency (such as USD), but may be paid by the Buyer in a Crypto Asset currency. The Buyer acknowledges that where such Charges are paid by the Buyer in a currency which is different to the reference price, the sum paid by the Buyer will be subject to currency conversion fluctuation at a market rate of exchange (as determined by Seller from time to time) and any associated charges.
Maintenance Fee and Pool Fees
15.5 The Buyer acknowledges and agrees that CUDOS Markets (acting with the authority and as disclosed agent of the Primary Seller) shall be entitled to deduct from the HR Reward certain agreed deductions which shall be automatically deducted from the gross HR Rewards before the net sum is remitted to the Buyer. CUDOS Markets (acting as Primary Seller’s disclosed agent) shall be entitled to deduct a Maintenance Fee which shall be stated in the Listing, as well as certain Pool Fees payable by the Primary Seller to CUDOS Markets.
15.6 The Maintenance Fee and the Pool Fees shall be automatically deducted from any HR Rewards. The Buyer acknowledges that any proportion of the HR Rewards owed to the Buyer by the Primary Seller shall be calculated in accordance with the Buyer’s HR Output Portion associated the relevant NFT Product and shall be net of such Maintenance Fees and Pool Fees (the “Net HR Rewards”). Following such automatic deduction, the Net HR Rewards will be automatically remitted by CUDOS Markets (acting as Primary Seller’s disclosed agent) to the Buyer Wallet. Furthermore, the Buyer agrees that remittance by CUDOS Markets (acting as the disclosed agent of the Primary Seller) of any Net HR Rewards will discharge the Seller’s obligation to pay such Net HR Rewards to the Buyer.
15.7 Notwithstanding these Seller Terms, if there are insufficient HR Rewards in any month to cover such Maintenance Fee, the fee deducted by CUDOS Markets (as agent of the Primary Seller) shall be reduced accordingly and CUDOS Markets shall be entitled to deduct the fee (in whole or in part) from whatever HR Rewards are available (and for the avoidance of doubt no person shall be liable to make up any shortfall) fee.
15.8 The Maintenance Fee may be stated as an amount in Crypto Assets or in fiat currency. Where the Maintenance Fee is listed in a fiat currency, the fee will be converted by CUDOS Markets (acting as Primary Seller’s disclosed agent, at the Primary Seller’s cost) to the relevant Crypto Asset at the date of each instalment deduction at a market rate of exchange (as determined by CUDOS Markets from time to time) in order to calculate the Maintenance Fee in the relevant Crypto Asset needed for the deduction, as required from time to time.
15.9 The Primary Seller may, from time to time, update the Maintenance Fee in accordance with this clause 15.9 solely in circumstances where there has been a material adverse change in the Primary Seller’s cost of infrastructure (as evidence in writing to, and accepted by, CUDOS Markets and provided such update is not a recalculation caused by price fluctuations of a given Crypto Asset that affect the Maintenance Fee) and provided that any update is in proportion to any variation in the Primary Seller’s infrastructure costs (and subject to agreement by CUDOS Markets). Subject to the foregoing, the Seller shall give CUDOS Markets at least 30 days’ prior notice of any proposed update and CUDOS Markets shall (as agent and on behalf of the Seller) make reasonable effort to ensure all Buyers are communicated details of any proposed increase on the CUDOS Markets Platform within a reasonable amount of time. The Buyer acknowledges that CUDOS Markets have the right to make changes to the Pool Fee charged by CUDOS Markets to the Seller from time to time.
Ongoing Gas Fees
15.10 Gas Fees may vary during the Term of a Purchase Contract and the Buyer acknowledges and agrees that:
15.10.1 they shall be responsible for paying Gas Fees as a prerequisite of receiving the Net HR Rewards and the NFT Product;
15.10.2 it is possible that Gas Fees may exceed the Net HR Rewards and in such circumstances the Buyer will receive no HR Rewards for that period of time; and
15.10.3 any changes to Gas Fees will not be communicated by CUDOS Markets or the Seller to the Buyer, and the Buyer should check the relevant online blockchain gas information to ensure that they are aware of the changes to Gas Fees associated with the relevant Crypto Asset Supported Network from time to time.
Seller Warranties
15.11 The Seller warrants that all details contained in the Listing are a true and accurate representation of the NFT Product.
15.12 If the Seller is a Secondary Seller, the Seller warrants in addition that they have entered into a Purchase Contract with the Primary Seller and have done and are still complying (and shall continue to comply during the Term) with the Terms of Sale of that Purchase Contract.
Net HR Rewards
15.13 Subject to these Terms of Sale, the Buyer shall be entitled to the Net HR Rewards associated with the NFT Product purchased by the Buyer.
15.14 If the Seller is a Primary Seller, the Seller undertakes to the Buyer that:
15.14.1 subject to clause 15.15, upon completion of the Order, in respect of the relevant NFT Product it shall automatically contribute (or procure the contribution of) HR output to the Mining Pool for the duration of the Term and for the purpose of obtaining HR Rewards, at an average HR output level (measured over a calendar month) that is greater than or equal to the HR Target Threshold as stated in the Listing, in each month for the duration of the Term; and
15.14.2 pursuant to clause 15.6, the Net HR Rewards associated with the Buyer’s Order shall be remitted to the Buyer Wallet from the Primary Seller CUDOS Markets Address from time to time in accordance with a frequency reasonably determined by CUDOS Markets (acting in its capacity as agent for the Seller), subject to the deduction of the Maintenance Fee and Pool Fees.
15.15 The Buyer acknowledges and agrees that the Net HR Rewards made available and remitted to the Buyer as a result of the Primary Seller’s HR Output may vary from time to time, and any variation in the average HR Rewards (measured over a calendar month) as a result of a variation in HR output above the HR Target Threshold or up to 15% below the HR Target Threshold in any month shall not constitute a breach of these Terms of Sale by the Primary Seller.
16. NFT Product
16.1 Where a Buyer enters into a Purchase Contract with the Seller on the CUDOS Markets Platform, for the duration of such Purchase Contract, the Buyer will (subject to the Buyer’s compliance with the Purchase Contract and until such time as the Buyer’s ownership of the NFT Product is sold, Transferred or otherwise disposed of):
16.1.1 own the underlying ‘tokenised’ asset of the NFT Product, but not the NFT Artwork (for which see clause 16.1.2). This ownership is recorded and cryptographically verified using the relevant Crypto Asset Supported Network;
16.1.2 have the right to use the relevant NFT Artwork for personal use in accordance with the licence granted to you under clause 22;
16.1.3 be entitled to the Net HR Rewards associated with the NFT Product during the relevant Term in accordance with clauses 15.13 and 15.14; and
16.1.4 be entitled to exercise such other rights as are expressly granted in respect of such NFT Product as set out in these Terms of Sale.
17. Royalty
If a Secondary Resale Royalty applies to an Order, as shown in the applicable Listing, then the relevant Buyer when acting as the Secondary Seller agrees to pay such Secondary Resale Royalty to the Primary Seller of such NFT Product on the conclusion of a Secondary Sale Contract for the applicable NFT Product, and CUDOS Markets (acting as disclosed agent for the Secondary Seller) shall deduct such Secondary Resale Royalty from the NFT Sale Price and remit it to the Primary Seller prior to Transferring the balance of the NFT Sale Price to the Secondary Seller.
18. Termination
18.1 All NFT Products once purchased by a Buyer are non-refundable. Please note that the Seller cannot provide any refunds for any Orders for NFT Products.
18.2 Without affecting any other right or remedy available to it, the Seller may terminate the Purchase Contract with immediate effect by giving notice (via CUDOS Markets) to the Buyer if the Buyer commits a material breach of any term of the Purchase Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified of the breach.
18.3 If a Primary Seller’s Seller Contract with CUDOS Markets is terminated, the Primary Seller will (via CUDOS Markets) attempt to contact the Buyer as soon as reasonably possible to notify the Buyer of such termination.
19. Events Outside Of Control
19.1 The Seller will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under any Purchase Contract that is caused by an Event Outside Of Control.
19.2 If an Event Outside Of Control takes place that affects the performance of the Seller’s obligations under the Purchase Contract:
19.2.1 the Seller will (via CUDOS Markets) attempt to contact the Buyer as soon as reasonably possible to notify the Buyer; and
19.2.2 the Seller’s obligations under the Purchase Contract will be suspended and the time for performance of its obligations will be extended for the duration of the Event Outside Of Control (provided that there shall be no extension beyond the relevant Term).
19.3 The Seller may terminate the Purchase Contract if an Event Outside Of Control affects the performance of the Seller’s obligations under the Purchase Contract for 60 days or more. If the Seller exercises this right of termination, it shall refund the Buyer on a pro rata basis from the start of the applicable Event Outside Of Control, the Charges paid by the Buyer that are for the portion of the Term remaining after termination of the Purchase Contract occurs, and after that point the Primary Seller is waived of any obligations related to the NFT Product associated with that Order.
20. Liability
20.1 Nothing in each Purchase Contract excludes or limits either party’s liability:
20.1.1 in respect of death or personal injury caused by its own negligence;
20.1.2 in relation to fraud or theft; and/or
20.1.3 any other liability which may not be limited or excluded under applicable law.
20.2 If the Buyer breaches the Purchase Contract (including breach of the Terms of Use or if the Buyer fails to pay any Charges due under a Purchase Contract), we (on behalf of the Seller in the case of a breach by the Buyer of the Purchase Contract) may immediately do any or all of the following (without limitation):
20.2.1 issue a warning to the Buyer;
20.2.2 temporarily or permanently remove any User Generated Content uploaded by the Buyer to the CUDOS Markets Platform;
20.2.3 temporarily or permanently withdraw the Buyer’s right to use the CUDOS Markets Platform and/or receive any services through the CUDOS Markets Platform;
20.2.4 suspend or terminate a Buyer Account and/or any Purchase Contract that the Buyer has entered into;
20.2.5 issue legal proceedings against the Buyer for reimbursement of all costs resulting from the breach (including reasonable administrative and legal costs);
20.2.6 take further legal action against the Buyer; and/or
20.2.7 disclose such information to law enforcement authorities as we reasonably feel is necessary to do so.
20.3 CUDOS Markets (acting as agent of the Seller) may set off any liability of the Buyer to the Seller against the Net HR Rewards, and make a deduction from the Net HR Rewards accordingly (including, for example, to account for any unpaid NFT Sale Price).
21. Consequences Of Termination
21.1 On expiry or termination of a Purchase Contract for any reason:
21.1.1 the Buyer shall immediately pay all outstanding unpaid Charges; and
21.1.2 the Buyer’s entitlement to receive the Net HR Rewards associated with the NFT Product pursuant to clauses 15.13 to 15.15 shall cease.
21.2 Any provision of these Platform Terms that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
22. NFT Artwork
22.1 A piece of digital artwork is linked to each NFT Product (“NFT Artwork”). NFT Artwork is viewable via the URL which is embedded in the metadata of the relevant NFT Product.
22.2 Subject to the Buyer’s compliance with the Purchase Contract, the Primary Seller grants to the Buyer a worldwide, non-exclusive, royalty-free, licence to use, display and reproduce the NFT Artwork associated with the Buyer’s NFT Product for the Usage Term (as defined below) for:
22.2.1 non-commercial and domestic purposes (including the Buyer’s own personal use);
22.2.2 inclusion or display on a third party website or application (for example, as a profile picture). Such third party website or application must be able to confirm the NFT Product ownership rights using the relevant Crypto Asset Supported Network;
22.2.3 marketing, promotional and listing purposes in order to sell, trade or otherwise transfer ownership of your NFT Product on a marketplace. Such marketplace must be able to confirm the NFT Product ownership rights using the relevant Crypto Asset Supported Network; or
22.2.4 conditional upon the Buyer complying at all times with clause 22.5 below, in the course of producing, advertising, selling and/or distributing products and/or services (for example, to affix the NFT Artwork to merchandise or as the trading logo of the Buyer’s business).
“Usage Term” means the time period which begins on the day the Buyer acquires ownership of the relevant NFT Product and ending upon the earlier of: (a) the day the Buyer transfers ownership of the relevant NFT Product; and (b) the termination of the Purchase Contract by the Seller in accordance with clause 18 or clause 19.3.
22.3 As between the Primary Seller and the Buyer, the Primary Seller or its licensors, are the owners of all right, title, and interest in and to all intellectual property rights (including copyright) in all NFT Artwork and any goodwill associated with them. The Primary Seller reserves all rights not expressly granted to the Buyer under these Terms of Sale in the NFT Products and NFT Artwork.
22.4 The Buyer acknowledges and agrees that if the Buyer sells, trades or otherwise transfers its ownership of a NFT Product to someone else:
22.4.1 the Buyer can no longer use the NFT Product or NFT Artwork in any way; and
22.4.2 the rights granted to the Buyer under clause 22.1 are terminated with immediate effect, subject to any rights which continue to subsist for a Secondary Buyer pursuant to clause 12.8.
Restrictions
22.5 The Buyer must not:
22.5.1 use the NFT Product or the associated NFT Artwork in a way that is:
22.5.1.1 detrimental, damaging or otherwise adverse to the name and/or reputation of CUDOS Markets;
22.5.1.2 obscene, abusive, offensive, racist, defamatory or otherwise promoting of hatred or physical harm against anyone;
22.5.1.3 discriminatory, whether based on ethnicity, race, sex, religion, nationality, disability, sexual orientation, age or other protected characteristic;
22.5.1.4 in any way promoting of terrorism, violence or illegal behaviour;
22.5.1.5 harmful to minors in any way;
22.5.1.6 unlawful or infringing on the rights of any third party;
22.5.1.7 in connection with the production, advertising, sale or distribution of any products relating to pornography or tobacco;
22.5.1.8 in connection with any business, product or service that is unlawful in any jurisdiction in which it is being operated, sold, advertised or distributed;
22.5.1.9 competitive with CUDOS Markets or the CUDOS Markets Platform in any way; or
22.5.1.10 in violation of these Terms of Sale; or
22.5.2 alter or modify the NFT Artwork.
PART 3: SELLER TERMS
23. Description
23.1 The objective of the CUDOS Markets Platform is to act as a marketplace to introduce and link Sellers with Buyers, and provide Sellers with the opportunity to receive services from CUDOS Markets (all of which are covered in these Platform Terms) and to sell NFT Products to Buyers directly. Each Seller acknowledges that CUDOS Markets, in operating the CUDOS Markets Platform even where essentially automated, is providing a platform service to Sellers (only) including acting as a disclosed agent in the name of and on behalf of each Seller in concluding Purchase Contracts between Sellers and Buyers, and in handling certain other obligations on the Seller’s behalf including as set out in these Seller Terms and the Terms of Sale and for the avoidance of doubt acting as disclosed agent in the name of the Primary Seller and Secondary Seller in concluding any Secondary Sale Contract. Accordingly, any Orders submitted via the CUDOS Markets Platform by a Buyer will, in respect of Primary Sales, result in a direct contract (being a Purchase Contract) solely between the Seller and that relevant Buyer, which will incorporate the Terms of Sale, General Terms and any Special Terms or, in respect of Secondary Sales, result in a contract (being a Secondary Sale Contract).
23.2 These Seller Terms are therefore between CUDOS Markets and the Seller (for avoidance of doubt, except as where expressly stated otherwise, these Seller Terms bind both Primary Sellers and Secondary Sellers equally) and set out the terms and conditions on which a Seller may set up a Seller Profile on the CUDOS Markets Platform, publish Listings and other information or content on its Activated Seller Profile and enter into Purchase Contracts directly with Buyers. Any use by a Seller of a Seller Profile on the CUDOS Markets Platform is subject strictly to these Seller Terms, which (together with the General Terms and any information provided on the registration page of the Activated Seller Profile (at the time of activation by CUDOS Markets in accordance with these Platform Terms, subject to clause 27.5)) are incorporated into each Seller Contract. In the event of a conflict between these Seller Terms, the General Terms, the Terms of Use and any information provided on the registration page for the Seller Profile, the order of priority shall be as follows:
23.2.1 any information provided on the registration page for the Seller Profile;
23.2.2 these Seller Terms;
23.2.3 the General Terms; then
23.2.4 the Terms of Use.
23.3 If the Secondary Seller is a Consumer, you have a legal right to change your mind and cancel the Seller Contract between you and us within 14 days of the Seller Contract being concluded without giving a reason (pursuant to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (or equivalent legislation in EU Member States)). However, by submitting a request to register a Seller Account you are requesting that we deliver all of the services provided by us under a Seller Contract to you immediately on formation of the Seller Contract and acknowledge and agree that by doing so you waive your right to cancel.
23.4 In using the CUDOS Markets Platform in compliance with these Platform Terms, Primary Sellers are free to, amongst other things, link their Cloud Mining Farms to the Mining Pool and Sellers are free to deliver NFT Products and Orders to Buyers as and when they prefer at their reasonable discretion and subject to the prices which they determine – the purpose of these Platform Terms is to ensure an acceptable and consistent user experience through the use of the CUDOS Markets Platform and compliance with applicable laws.
24. Seller Profile Registration And Listings
24.1 In order to upload any content, link a Cloud Mining Farm, add Listings, sell NFT Products, receive HR Rewards or receive any other services provided through the CUDOS Markets Platform, the Seller must first register a Seller Account and a Seller Profile (which includes completing the registration page of the Seller Profile) using the process set out on the CUDOS Markets Platform and as described in this clause 23 and then the Seller Account and Seller Profile must be activated in accordance with this clause 23.
24.2 Please note that only Businesses may register a Seller Account and a Seller Profile as a Primary Seller.
Seller Account and Seller Profile activation
24.3 The Seller’s submission of a request to register a Seller Account and Seller Profile is an offer by the Seller to enter into a Seller Contract with CUDOS Markets on these Seller Terms. When a Seller registers for a Seller Account and Seller Profile, they will be asked to provide certain information including information needed to complete the registration page of the Seller Profile (such as company name, names of the company directors, email address, company location, location of their ASIC or computing machines and any other such information as required by CUDOS Markets from time to time (the “Registration Information“)), and Sellers will need to follow the process steps set out on the CUDOS Markets Platform.
24.4 After the Seller submits a request to register a Seller Account and Seller Profile, the Seller will receive written communication from CUDOS Markets acknowledging that we have received it, but this does not mean that the Seller’s request to register a Seller Account and Seller Profile has been accepted. We will separately notify the Seller by written communication if we accept or reject the Seller’s offer at which point, if we have accepted the Seller’s offer, a Seller Contract shall be formed and these Seller Terms, the General Terms, any information contained on the registration page for the Seller Profile (at the time of activation by CUDOS Markets in accordance with these Platform Terms, subject to clause 27.5) and the request to register a Seller Account and Seller Profile shall be binding on us and the Seller, subject to clause 5.1 (the “Confirmation Communication“).
24.5 Please note that the Seller Contract will incorporate these Seller Terms as well as the General Terms.
24.6 As part of our security procedures, CUDOS Markets may provide the Seller’s Registration Information to our KYC Provider prior to any Seller Account or Seller Profile being activated by CUDOS Markets (the “Seller Registration Process“).
24.7 During the Seller Registration Process, anti-money laundering and know-your-client checks may be completed and the KYC Provider will provide CUDOS Markets with a report confirming their independent verification of the Seller’s Registration Information. By registering a Seller Account and Seller Profile you consent to your information being shared with a third party KYC Provider, and such other persons as set out in our privacy policy.
24.8 The Confirmation Communication will also contain the relevant steps required for a Seller to link a Seller’s ASIC or computing Machines to the Activated Seller Profile and, amongst other things, upload Listings, receive HR Rewards and contract with Buyers.
24.9 The Seller must ensure that all information contained in the Seller’s Profile is accurate and up to date at all times.
24.10 Following completion of the Seller Registration Process to CUDOS Markets’s satisfaction CUDOS Markets will activate the Seller Account and Seller Profile. CUDOS Markets reserves the right in its sole discretion to refuse to activate a Seller Account and/or Seller Profile based on the Registration Information and Seller Registration Process or any other information. Any decision by CUDOS Markets with regards to Account activation is final and cannot be appealed.
24.11 Without prejudice to any of our other rights set out in these Seller Terms, General Terms or in the Terms of Use, we reserve the right to remove (and/or require the Seller to remove) any content or Listings from the Seller Profile that we believe is not in compliance with these Seller Terms, General Terms or the Terms of Use.
NFT Product Listings
24.12 Once a Seller has an Activated Seller Profile, the Seller is permitted to upload a Listing to the Activated Seller Profile by following the instructions on the CUDOS Markets Platform, subject to the following conditions:
24.12.1 all Listings must contain clear, accurate and up to date information regarding the applicable NFT Product and any associated Charges that accompany the Listing; and
24.12.2 in the case of a Primary Seller, the Seller is permitted to apply to upload a Listing, which will need to be approved by CUDOS Markets.
24.13 A Seller may modify the information contained in a Listing only to the extent that the Listing relates to an unsold NFT Product. Any Listing relating to sold NFT Products which are the subject of a Purchase Contract between the Seller and a Buyer may not be modified after it has been sold.
24.14 The Seller acknowledges and agrees that CUDOS Markets does not provide any guarantee that an NFT Product will be minted on any blockchain by the Blockchain Minting Module and that this is outside CUDOS Markets’s control.
24.15 Each Primary Seller is solely responsible for correctly linking its Cloud Mining Farm to their Activated Seller Profile and the Mining Pool. CUDOS Markets accepts no responsibility if a Primary Seller incorrectly sets up their Activated Seller Profile with the incorrect Cloud Mining Farm or ASIC or computing machines. For the avoidance of doubt, each Primary Seller will be solely responsible to any Buyer for the committed HR output and any associated HR Rewards as stated on the Listing and subject to the terms the Purchase Contract, regardless of whether the Seller Profile has been set up incorrectly or inaccurately by any Seller.
24.16 Notwithstanding clause 24.12, the Seller is responsible for ensuring that all details contained in a Listing they initiate relating to an NFT Product are correct and must carefully verify all Listing information prior to initiating such Listing. The Seller acknowledges that once submitted to the CUDOS Markets Platform CUDOS Markets may not be able to cancel or otherwise modify the Listing.
23.17 CUDOS Markets reserves the right to approve or reject all Listings uploaded to the CUDOS Markets Platform by the Seller.
24. Buyer ORDERS
25.1 In respect of Primary Sales, when a Buyer submits an Order to the Seller via the CUDOS Markets Platform, the Seller (as principal) authorises CUDOS Markets to act, and CUDOS Markets hereby shall act, as disclosed agent in the name of and on behalf of the Seller to:
25.1.1 accept such Order. CUDOS Markets will as agent acting with the authority of the Seller (as principal) automatically accept any Order(s) made via the CUDOS Markets Platform, at which point a Purchase Contract shall be formed between the Seller and the Buyer. CUDOS Markets shall not have any liability for the provision of services and content by the Seller as principal to Buyers; and
25.1.2 in respect of a Primary Sale, mint (or procure the minting of) the NFT Product described in the Listing.
25.2 In respect of Secondary Sales, when a Buyer submits an Order to the Sellers via the CUDOS Markets Platform, the Sellers (as principals) each authorise CUDOS Markets to act, and CUDOS Markets hereby shall act, as disclosed agent in the name of and on behalf of each Seller to automatically accept such Order at which point a Secondary Sale Contract shall be formed between the Sellers and the Buyer. CUDOS Markets shall have no liability for the provision of services and content by Sellers as principal to Buyers.
26. Key Obligations
26.1 It is a condition of the Seller Contract that the Seller:
26.1.1 complies in full with, and that all Seller Listings and services comply in full with, the Terms of Use at all times;
26.1.2 ensures that any User Generated Content the Seller uploads via an Interactive Feature (for example chat interactions with any Buyers) complies with the Terms of Use;
26.1.3 complies in full with all Purchase Contracts that the Seller enters into from time to time with Buyers, and does not sell any goods as a separate or incidental supply through the CUDOS Markets Platform;
26.1.4 ensures that any Special Terms that the Seller seeks to incorporate into a Purchase Contract are fair, reasonable and comply in all respects with all applicable laws and regulations;
26.1.5 complies in full with reasonable instructions from CUDOS Markets in relation to the operation of the Seller Profile from time to time;
26.1.6 where the Seller is a Primary Seller, ensures that any and all payments, charges, taxes or costs charged by the Mining Pool for Gas Fees or any other associating mining cost are paid and settled in line with the Mining Pool’s terms;
26.1.7 does not, by any act or omission, bring the CUDOS Markets Platform and/or CUDOS Markets and/or any of its Affiliates into disrepute; and
26.1.8 hereby authorises us to act as the Seller’s disclosed agent in concluding and in performing certain of the Seller’s obligations and exercising certain of the Seller’s rights under each Purchase Contract and/or Seller Contract on the Seller’s behalf, as expressly indicated in the Terms of Sale and/or these Seller Terms.
27. Payment AND TAXES
General
27.1 In consideration for the operation by us of the CUDOS Markets Platform and the opportunity to set up a Seller Profile and the provision of our related agency and other related services in respect of Purchase Contracts on the Seller’s behalf, the Seller hereby authorises us to:
27.1.1 act as processing agent for any Seller fees due to Sellers from Buyers (such as the Net Sale Price less any deductions or any Maintenance Fees) and to accept payment of fees on the Seller’s behalf;
27.1.2 act as a processing agent for any Seller fees or Crypto Assets due to Sellers from third parties (such as the HR Rewards) and to accept payment of such fees or Crypto Assets on the Seller’s behalf;
27.1.3 act as a processing agent for Net HR Rewards owed by Seller to the Buyer and Transfer such Net HR Rewards to the Buyer on the Seller’s behalf (in the Crypto Asset selected by the Buyer);
27.1.4 act as a processing agent for any Primary Seller fees due to Primary Sellers from a Secondary Seller (such as the Secondary Resale Royalty) and to Transfer payment of such fees to the Primary Seller on the Secondary Seller’s behalf;
27.1.5 act as a processing agent for any Maintenance Fees to be deducted from HR Rewards on behalf of Primary Sellers and to Transfer payment of such Crypto Asset to the Primary Seller;
27.1.6 in respect of the Primary Seller, retain from such payments (referred to in 27.1.1 and 27.1.2 above) and charge to the Primary Seller the applicable CUDOS Markets Maintenance Fee, Initial NFT Sale Platform Fee, the NFT Sale Price Deduction, Pool Fee and CUDOS Markets Secondary Resale Royalty (the “CUDOS Markets Fees”) (as set out in further detail below in clauses 27.8 to 27.13, inclusive) as notified to the Primary Seller plus any applicable VAT; and
27.1.7 in respect of Secondary Sellers, retain from such payments (referred to in clauses 27.1.1) and charge to the Secondary Seller the Secondary NFT Sale Platform Fee (as set out in clauses 27.9), and deduct on behalf of the Primary Seller the Secondary Resale Royalty, as notified to the Secondary Seller plus any applicable VAT.
27.2 Each Seller acknowledges that receipt by CUDOS Markets (in cleared funds) of a Buyer’s payment of the NFT Sale Price for Orders to CUDOS Markets (acting in its capacity as the Seller’s disclosed agent) will, as between the Seller and the Buyer, be treated as a good discharge of the Buyer’s payment obligation, whether or not the relevant Crypto Assets then ultimately are received to the Seller’s Crypto Asset Address.
CUDOS Markets Fees
27.3 Following payment by a Buyer of the NFT Sale Price or payment by the Mining Pool of the HR Rewards, we shall deduct the CUDOS Markets Fees (or Secondary NFT Sale Platform Fee, as applicable) pursuant to this clause 27.
27.4 We may set off any liability of the Seller to us (whether under the Seller Contract or otherwise) against the NFT Sale Price, and make a deduction from the NFT Sale Price accordingly (including, for example, to account for any refunds, chargebacks, fraudulent activity and/or money laundering).
27.5 We have the right to make changes to the CUDOS Markets Fees (or Secondary NFT Sale Platform Fee or CUDOS Markets Secondary Resale Royalty, as applicable) from time to time, although we shall provide the Seller with at least 30 day’s notice of such a change.
27.6 Any CUDOS Markets Fees (or Secondary NFT Sale Platform Fee, as applicable) set out on the CUDOS Markets Platform prior to the Seller entering into Purchase Contracts are estimated fees and may not be accurate. The final amount of CUDOS Markets Fees (or Secondary NFT Sale Platform Fee, as applicable) may vary from the original calculation and shall be confirmed by CUDOS Markets to the Seller at the time of deduction.
27.7 Subject to clause 49 (Payments and Crypto Asset Transfers), payments to Sellers from Buyers can be made via the CUDOS Markets Platform in Crypto Assets from the Buyer Wallet and/or through any such payment gateways and/or third parties that CUDOS Markets may elect from time to time. Payment is made directly to CUDOS Markets acting as disclosed agent on behalf of the Seller only.
CUDOS Markets Maintenance Fee
27.8 The Primary Seller acknowledges and agrees the following with respect to the CUDOS Markets Maintenance Fee:
27.8.1 the CUDOS Markets Maintenance Fee shall be deducted from the Maintenance Fee deducted by the Primary Seller from the HR Rewards, and the CUDOS Markets Maintenance Fee shall be paid to the CUDOS Markets Address; and
27.8.2 this CUDOS Markets Maintenance Fee is non-refundable and will not be returned to the Primary Seller.
Initial NFT Sale Platform Fee and Secondary NFT Sale Platform Fee
27.9 The Seller acknowledges and agrees the following with respect to the Initial NFT Sale Platform Fee and/or the Secondary NFT Sale Platform Fees (and CUDOS Markets Secondary Resale Royalty), as applicable:
27.9.1 in respect of the Initial NFT Sale Platform Fee, such fee shall be deducted by CUDOS Markets from the NFT Sale Price paid by the Buyer for the Order prior to the remaining balance of the NFT Sale Price (less the NFT Sales Price Deduction) being Transferred to the Seller;
27.9.2 in respect of the Secondary NFT Sale Platform Fee, such fee shall be deducted by CUDOS Markets from the NFT Sale Price paid by the Buyer for the Order prior to the remaining balance of the NFT Sale Price (less the Secondary Resale Royalty) being Transferred to the Secondary Seller;
27.9.3 if a Secondary Resale Royalty applies to an Order, then the Primary Seller agrees to pay CUDOS Markets the CUDOS Markets Secondary Resale Royalty, and such fee shall be deduced by CUDOS Markets from the Secondary Resale Royalty paid by the Secondary Seller prior to the remaining balance of the Secondary Resale Royalty being Transferred to the Primary Seller; and
27.9.4 such fees are non-refundable and will not be returned to the Seller.
Pool Fee
27.10 The Seller acknowledges and agrees the following with respect to the Pool Fee:
27.10.1 the Pool Fee shall be deducted from the HR Reward paid to CUDOS Markets as a result of the Primary Seller’s HR Output and Cloud Mining Farm activity (deducted from time to time in such frequency as determined by CUDOS Markets); and
27.10.2 the Pool Fee is non-refundable and will not be returned to the Primary Seller.
NFT Sale Price Deduction
27.11 The Primary Seller acknowledges and agrees the following with respect to the NFT Sale Price Deduction. In respect of Primary Sales, the NFT Sale Price Deduction shall be deducted from the NFT Sale Price by CUDOS Markets when the Buyer pays the NFT Sale Price.
Net HR Rewards
27.12 In respect of each NFT Product which has been sold to a Buyer, the Primary Seller hereby authorises CUDOS Markets:
27.12.1 to collect the relevant HR Rewards on its behalf;
27.12.2 to deduct any Pool Fees and CUDOS Markets Maintenance Fees payable to CUDOS Markets;
27.12.3 to remit any Maintenance Fees (less the CUDOS Markets Maintenance Fees) to the Seller; and
27.12.4 (acting as the disclosed agent of the Seller) remit any remaining Net HR Rewards to the Buyer in the Crypto Asset selected by the Buyer.
27.13 In respect of any NFT Product which has not been sold, the Primary Seller hereby authorises CUDOS Markets:
27.13.1 to collect the relevant HR Rewards on its behalf;
27.13.2 to deduct any Pool Fees payable to CUDOS Markets; and
27.13.3 remit the balance of any remaining HR Rewards to the Primary Seller.
Reimbursement
27.14 On expiry of the Primary Seller’s corresponding Purchase Contract Term CUDOS Markets may return to the Primary Seller any remaining NFT Sale Price Deduction within 45 days of expiry of the relevant Term (in CUDOS Markets’s sole discretion), provided that the Primary Seller has been in full compliance with these Platform Terms throughout the relevant Purchase Contract Term.
Taxes
27.15 Sellers are responsible for compliance with all applicable tax and regulatory obligations in respect of Seller payments from Buyers pursuant to any Order and/or under any Purchase Contract and we recommend that Sellers take independent legal and tax advice in this respect.
Other
27.16 CUDOS Markets may charge additional fees as agreed between the parties in writing.
28. Intellectual property rights
CUDOS Markets IPRs
28.1 Notwithstanding the Terms of Use, we and the Seller agree that the CUDOS Markets IPRs shall be owned exclusively by CUDOS Markets.
28.2 We hereby grant the Seller a limited, revocable, non-transferable, non-exclusive licence to use the CUDOS Markets IPRs solely as necessary for the Seller to use the CUDOS Markets Platform (and perform its obligations under Purchase Contracts) for the duration of the Seller Contract.
28.3 Notwithstanding clause 28.2, subject to the Primary Sellers’s compliance with these Seller Terms and the General Terms, CUDOS Markets grants to the Primary Seller a worldwide, non-exclusive, royalty-free, licence to use, display and reproduce the NFT Artwork linked to an NFT Product (whereby such NFT Artwork is linked to the NFT Product by CUDOS Markets on the Sellers behalf), and grant sub-licences of the same to the relevant Buyer of the NFT Product, for the Usage Term for:
28.3.1 non-commercial and domestic purposes;
28.3.2 inclusion or display on a third party website or application (for example, as a profile picture). Such third party website or application must be able to confirm the NFT Product ownership rights using the relevant Crypto Asset Supported Network;
28.3.3 marketing, promotional and listing purposes in order to sell, trade or otherwise transfer ownership of the relevant NFT Product on a marketplace. Such marketplace must be able to confirm the NFT Product ownership rights using the relevant Crypto Asset Supported Network; or
28.3.4 conditional upon the Primary Seller complying with clause 28.9 (and procuring the Buyer’s compliance at all times with clause 22.5 of the Terms of Sale), in the course of producing, advertising, selling and/or distributing products and/or services (for example, to affix the NFT Artwork to merchandise or as the trading logo of the Buyer’s business), provided that the Primary Seller acknowledges and agrees that such right may only be exercised by the Buyer to whom the Primary Seller is sub-licensing such right (and not by the Primary Seller itself), provided that the NFT Artwork is licensed as-is without a warranty of any kind and CUDOS Markets provides no warranty or representation that the NFT Artwork (or any use in accordance with the scope of the licence above) will not infringe the Intellectual Property Rights of any third party.
Seller IPRs
28.4 We and the Seller agree that (as between the Seller and us) the Seller shall own all Seller IPRs.
28.5 The Seller hereby grants us, to the greatest extent permissible by applicable law, a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, transferable licence with the right to sublicense through multiple tiers to use, host, store, transfer, display, perform, reproduce, distribute, modify for the purpose of formatting for display, create derivative worksof the Seller IPRs and distribute the Seller’s User Generated Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed for the purposes of operating the CUDOS Markets Platform (and in particular ensuring that the Listings are available on the Seller profile) or for any group company services.
28.6 If a Seller uploads to the CUDOS Markets Platform any content, data, information or materials in any format (including any User Generated Content) which contains material and/or content owned, generated by or pertaining to a third party, the Seller warrants, represents and undertakes to CUDOS Markets that it has all necessary licences, permissions and consents, from that third party to use such material and/or before submitting such User Generated Content to the CUDOS Markets Platform.
28.7 The Seller grants to CUDOS Markets a non-exclusive, worldwide, royalty-free, transferable licence to use the Seller’s name and logo in marketing materials and to refer to the Seller on the CUDOS Markets website.
Warranties
28.8 The Seller confirms, warrants and represents that:
28.8.1 the Seller owns, or has a licence to use in accordance with these Seller Terms, all rights (including Intellectual Property Rights) in all Seller IPRs;
28.8.2 the use by us (including the inclusion on the CUDOS Markets Platform by us) of Seller IPRs or the Seller’s User Generated Content in accordance with these Seller Terms shall not infringe the rights, including the Intellectual Property Rights, of any third party; and
28.8.3 the use by us (including the inclusion on the CUDOS Markets Platform by us) and/or the use by any party to a Purchase Contract of any NFT Product in accordance with these Seller Terms shall not infringe the rights, including the Intellectual Property Rights, of any third party.
NFT Artwork Restrictions
28.9 The Seller must not:
28.9.1 use the NFT Product or the associated NFT Artwork in a way that is:
28.9.1.1 detrimental, damaging or otherwise adverse to the name and/or reputation of CUDOS Markets;
28.9.1.2 obscene, abusive, offensive, racist, defamatory or otherwise promoting of hatred or physical harm against anyone;
28.9.1.3 discriminatory, whether based on ethnicity, race, sex, religion, nationality, disability, sexual orientation, age or other protected characteristic or otherwise be contrary to public policy of inter alia the government of the BVI;
28.9.1.4 in any way promoting of terrorism, violence or illegal behaviour;
28.9.1.5 harmful to minors in any way;
28.9.1.6 unlawful or infringing on the rights of any third party;
28.9.1.7 in connection with the production, advertising, sale or distribution of any products relating to pornography or tobacco;
28.9.1.8 in connection with any business, product or service that is unlawful in any jurisdiction in which it is being operated, sold, advertised or distributed;
28.9.1.9 competitive with CUDOS Markets or the CUDOS Markets Platform in any way; or
28.9.1.10 in violation of these Terms of Sale; or
28.9.2 alter or modify the NFT Artwork.
29. Disclaimers
29.1 NFT Products have no inherent or intrinsic value and their price may be subject to market fluctuations and sudden and significant increases or decreases in value. CUDOS Markets does not accept any warranties regarding this market volatility and other risks involved in generating, selling or trading NFT Products. The Seller is solely responsible for its decision to generate, sell, trade or otherwise hold or deal with NFT Products or any Listing.
29.2 The initial selling of a NFT Product does not represent, warrant, reflect, suggest or infer any current or future value of that NFT. An NFT is not a currency, substitute for currency, investment, security, share, debt or loan or derivative instrument.
29.3 Nothing on this CUDOS Markets Platform or otherwise communicated or provided by CUDOS Markets or any of our group companies constitutes a prospectus or offering document or is an offer, recommendation or advice to sell or solicitation of an offer to purchase an NFT Product or any investment, security or share.
29.4 CUDOS Markets does not warrant, represent, undertake or agree that: (a) the use of the CUDOS Markets Platform by the Seller will meet the Seller’s requirements; or (b) defects in the CUDOS Markets Platform will be corrected. Under no circumstances shall CUDOS Markets or CUDOS Markets Personnel have any liability for any Losses caused by errors or omissions in any information, instructions or scripts provided to CUDOS Markets and/or CUDOS Markets Personnel by or on behalf of the Seller in connection with these Seller Terms, or any actions taken by CUDOS Markets and/or CUDOS Markets Personnel at the Seller’s direction.
29.5 CUDOS Markets is not liable under any provision of this Agreement for any performance problem, claim of infringement or other matter to the extent attributable to any unauthorised or improper use or modification of the CUDOS Markets Platform by or on behalf of the Seller, any combination of the CUDOS Markets Platform with any other software or services, or any open source software.
30. Termination
The Seller’s rights to terminate
30.1 Subject to clause 30.3 the Seller may terminate the Seller Contract by providing us with at least one month’s notice in accordance with clause 34 (Notices).
30.2 The Seller will continue to have access to the CUDOS Markets Platform for 20 days from the date of notification to us, provided that the Seller is in full compliance with these Platform Terms.
30.3 The Seller may not terminate the Seller Contract if there are any outstanding active Purchase Contracts with ongoing obligations under the Term that would result in a breach of the Purchase Contract with the Buyer should the Seller terminate the Seller Contract.
Suspension and termination by us
30.4 Without prejudice to any other right or remedy of CUDOS Markets:
30.4.1 We may terminate the Seller Contract by providing the Seller with at least one month’s notice in accordance with clause 34 (Notices).
30.4.2 We may restrict or suspend any particular Seller Listing that we believe breaches these Seller Terms. For the avoidance of doubt, we have no responsibility to review any Seller Listing or information on the Seller Profile prior to it being uploaded and are not obliged to once it is live on the CUDOS Markets Platform, but we reserve the right to take down and/or restrict access to any Seller Listing supplied that we believe contravenes these Seller Terms and/or the Terms of Use.
30.4.3 We may suspend or terminate the Seller Contract and prohibit the Seller from entering into any future Seller Contracts, Purchase Contracts, new Listings, or otherwise accessing the CUDOS Markets Platform (in whole or in part) immediately without notice for a breach of any material term of these Seller Terms or any Purchase Contract.
30.4.4 We may also, without advanced notice, suspend or terminate the Seller Contract and prohibit the Seller from entering into any other Seller Contracts, Purchase Contracts or otherwise accessing the CUDOS Markets Platform (in whole or in part) if:
30.4.4.1 we are subject to a legal or regulatory obligation which requires us to terminate the provision of the whole of CUDOS Markets Platform to the Seller in a manner which does not allow us to provide advance notice;
30.4.4.2 there is an imperative reason pursuant to applicable law or regulation;
30.4.4.3 we can demonstrate that the Seller has repeatedly breached or infringed these Seller Terms; or
30.4.4.4 we reasonably believe that the Seller’s Seller Profile is or has been the subject of any fraudulent activity or money laundering (or any attempt at the same) or excessive amounts of legitimate written complaints on official CUDOS Markets communication channels or excessive chargebacks, whether or not such activity or attempted activity is due to any act or omission of the Seller.
30.5 CUDOS Markets has no liability to the Seller for any Losses the Seller may suffer as a result of termination or suspension of the Seller Contract by CUDOS Markets pursuant to CUDOS Markets’s rights under this clause 30.
31. Consequences Of Termination
31.1 On expiry or termination of the Seller Contract for any reason:
31.1.1 CUDOS Markets may delete or remove the Seller’s Seller Profile from the public view (save as set out in clause 31.1.3 below) and the Seller is prohibited from creating any further Seller Profiles;
31.1.2 subject to clause 30.2, the Seller will not have access to the information provided or generated by the Seller;
31.1.3 the Primary Seller will (via CUDOS Markets) attempt to contact all Buyers which are party to an active Purchase Contract with the Primary Seller with ongoing obligations under the Term as soon as reasonably possible to notify any Buyer of termination or expiry of the Primary Seller’s contract with CUDOS Markets;’
31.1.4 the licence granted in clause 28.2 will cease.
31.2 Save where the Seller Contract is terminated by us pursuant to clause 30.4.3 or 30.4.4, we will transfer to the Seller any outstanding payments within forty-five (45) days of the effective date of termination, after charging the Seller for any outstanding CUDOS Markets Fees, Gas Fees, costs associated to launching NFT collection campaigns including KYC fees where these fees were not recovered from CUDOS Markets’s Fees and payments owed to NFT owners (if any) due to clause 19.3 or otherwise, or any other applicable fees or deductions.
31.3 Any provision of these Seller Terms that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
31.4 CUDOS Markets shall have no liability to the Seller for any Losses suffered by the Seller as a result of any termination of the Seller Contract by CUDOS Markets pursuant to its rights in clause 30.4.
32. Indemnities
32.1 The Seller shall indemnify, keep indemnified and hold us harmless against (or where the Seller is a Consumer, the Seller shall be responsible and liable to us in respect of) any Losses suffered or incurred by us arising out of or relating to:
32.1.1 any claim that the use of the Seller Profile, Listings, Seller’s User Generated Content or any other Seller IPRs by us or any party to a Purchase Contract in accordance with these Platform Terms infringes the rights (including the Intellectual Property Rights) of any third party;
32.1.2 any use by the Seller of the CUDOS Markets IPRs other than in accordance with these Seller Terms;
32.1.3 any claim made against CUDOS Markets arising out of the Seller’s breach of any Purchase Contract;
32.1.4 any liabilities which CUDOS Markets may incur provided CUDOS Markets was acting with reasonable care and skill within the scope of its authority under these Seller Terms as agent for the Seller; and/or
32.1.5 any other breach of these Seller Terms.
33. Liability And Indemnity
33.1 Except as expressly set out in a Seller Contract, all conditions, warranties, stipulations and other statements whatsoever that would otherwise be implied or imposed by statute, at common law or otherwise howsoever are excluded to the fullest extent permitted by law.
33.2 Nothing in each Seller Contract excludes or limits either our or the Seller’s liability for:
33.2.1 death or personal injury arising out of negligence;
33.2.2 fraud or theft; and/or
33.2.3 any other liability which may not be limited or excluded under applicable law.
33.3 If the Seller is a Business, subject to clause 33.2:
33.3.1 in no event shall we be liable to the Seller for: (a) any loss of profits, loss of revenue, loss of contracts, failure to realise anticipated savings (regardless of whether these types of loss or damage are direct, indirect or consequential) or for any indirect or consequential loss or damage whatsoever, whether in contract, tort (including negligence), misrepresentation (whether tortious or statutory), breach of statutory duty or otherwise; or (b) any failure to perform, or delay in performance of, any of CUDOS Markets’s obligations under these Seller Terms that is caused by an Event Outside Of Control (which includes any failure or malfunction of a Crypto Asset Supported Network); and
33.3.2 our total aggregate liability to the Seller for any loss or damage arising out of or in connection with the relevant Seller Contract (or otherwise in relation to these Platform Terms), whether in contract, tort (including negligence), misrepresentation (whether tortious or statutory), breach of statutory duty, or otherwise shall be limited to a sum equal to the higher amount of:
33.3.2.1 in relation to liability to the relevant Primary Seller: (a) the total CUDOS Markets Fees ’’charged by CUDOS Markets to such Primary Seller under the relevant Seller Contract in the 12 months prior to the first Default giving rise to a liability which the relevant Primary Seller seeks to recover from us; and (b) US$100; or
33.3.2.2 in relation to liability to the relevant Secondary Seller: (a) the total Secondary NFT Sale Platform Fee charged by CUDOS Markets to such Secondary Seller in the 12 months prior to the first Default giving rise to a liability which the relevant Secondary Seller seeks to recover from us; and (b) US$100.
33.4 If the Seller is a Consumer:
33.4.1 save as set out in clause 33.2, if we fail to comply with the terms of any Seller Contract, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of such Seller Contract or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it was an obvious consequence of our breach or if it was contemplated by you and us at the time that the Seller Contract became binding;
33.4.2 nothing in these Seller Terms affects your statutory rights as a Consumer; and
33.4.3 subject to clause 33.2, our total aggregate liability to the Seller for any loss or damage arising out of or in connection with the relevant Seller Contract (or otherwise in relation to these Platform Terms), whether in contract, tort (including negligence), misrepresentation (whether tortious or statutory), breach of statutory duty, or otherwise shall be limited to a sum equal to the higher amount of (a) the total Secondary NFT Sale Platform Fee charged by CUDOS Markets to such Secondary Seller in the 12 months prior to the first Default giving rise to a liability which the relevant Secondary Seller seeks to recover from us; and (b) US$100.
33.5 This clause 33 will survive termination or expiry of the Seller Contract.
34. Notices
34.1 Any notice or other communication given by one party to the other under or in connection with these Seller Terms must be in writing and be delivered personally (in the case of CUDOS Markets, to its registered office in the BVI), sent by a next working day delivery service (in the case of CUDOS Markets, to its registered office in the BVI), by email, or displayed in the CUDOS Markets Platform.
34.2 A notice or other communication is deemed to have been received:
34.2.1 if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
34.2.2 if sent by next working day delivery service, at 9.00 am on the second working day after posting; or
34.2.3 if sent by email or displayed in the CUDOS Markets Platform, at 9.00 am the next working day after transmission.
34.3 In proving the service of any notice, it will be sufficient to prove, in the case of an email, that such email was sent to the specified email address of the addressee.
34.4 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
35. Approvals, Waiver And Cumulative Remedies
35.1 In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under these Seller Terms or by law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy in respect of the circumstances in question, or operate so as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any other instance at any time or times subsequently.
35.2 The rights and remedies arising under, or in connection with, these Seller Terms are cumulative and, except where otherwise expressly provided in these Seller Terms, do not exclude any rights or remedies provided by law or otherwise.
36. Confidentiality
36.1 The Seller and CUDOS Markets each undertake that each of us will not at any time, and for a period of five years after termination of the Seller Contract, disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by clause 36.2.
36.2 Each of the Seller and CUDOS Markets may disclose the other’s confidential information:
36.2.1 to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out our respective obligations under the Seller Contract. The Seller and we will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 36;
36.2.2 in the case of CUDOS Markets, to any User as may be required to carry out CUDOS Markets’s obligations under the Seller Contract and /or the Terms of Use; and
36.2.3 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
36.3 Each of the Seller and CUDOS Markets may only use the other’s confidential information for the purpose of fulfilling our respective obligations under these the Seller Contract.
37. Invalidity
37.1 If any provision of these Seller Terms shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of these Seller Terms which shall remain in full force and effect.
37.2 If any provision of these Seller Terms is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such deletion(s) as may be necessary to make it valid.
37.3 The parties agree, in the circumstances referred to in clause 37.1 and if clause 37.2 does not apply, to attempt in good faith to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
38. Entire Agreement
38.1 These Seller Terms constitute the entire agreement and understanding of the parties relating to the subject matter of the Seller Contract and supersede any previous agreement or understanding between the parties in relation to such subject matter.
38.2 Each party acknowledges that in entering into the Seller Contract it has not relied upon any Pre-Contractual Statements.
38.3 Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
38.4 Nothing in this clause 38 shall exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.
39. Third Party Rights
39.1 A person who is not a party to the Seller Contract may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999 except for any person to whom the benefit of this Agreement is assigned or transferred in accordance with clause 40.
40. Assignment
40.1 Save as set out in clause 40.3 below and clause 26.1.8 above, the Seller shall not without the prior written consent of the CUDOS Markets, assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with the Seller Contract or any rights under the Seller Contract or purport to do any of the same. Any purported assignment in breach of this clause 40 shall confer no rights on the purported assignee.
40.2 CUDOS Markets may at any time assign at law or in equity (including by way of a charge or declaration of trust), sub-license, deal or novate a Seller Contract or any rights under a Seller Contract.
40.3 CUDOS Markets may assign at law or in equity (including by way of a charge or declaration of trust) or sub-license a Seller Contract in favour of, and sub-contract any of our obligations under a Seller Contract to, one or more of our Affiliates or to any third party.
41. Sanctions
41.1 The Seller warrants on an ongoing basis that it is not:
41.1.1 a Sanctioned Person and has not been a Sanctioned Person at any time and nothing has occurred that could reasonably be expected to result in it becoming a Sanctioned Person;
41.1.2 contravening and has not contravened any Sanctions at any time; or
41.1.3 and has not in any way been involved in any Sanctions Proceedings (other than for the sole purpose of providing information or evidence in respect of such proceedings) at any time and there are no circumstances likely to give rise to any such Sanctions Proceedings.
41.2 At all times during the term of the Seller Contract, the Seller shall:
41.2.1 not contravene any Sanctions;
41.2.2 not do, or omit to do, any act that will cause or lead CUDOS Markets to contravene any Sanctions; and
41.2.3 implement adequate policies and procedures to ensure compliance with Sanctions.
41.3 The Seller shall as soon as reasonably practicable notify CUDOS Markets in writing if:
41.3.1 at any time during the term of the Seller Contract, there is any fact or circumstance that would give rise to a breach of warranties given in clause 41.1 if the warranties were repeated; or
41.3.2 it becomes aware of any breach or suspected breach of this clause 41.3;
and it shall provide such information about such fact or circumstance or about the breach as CUDOS Markets requires to comply with its obligations to any Sanctions Authority or otherwise reasonably requests.
41.4 CUDOS Markets shall not be obliged to perform any of its obligations under the Seller Contract to the extent that the performance of such obligations would result in it breaching Sanctions applicable to it. For the avoidance of doubt, notwithstanding that the performance of such obligations would result in it breaching Sanctions applicable to it, CUDOS Markets shall at all times continue to perform all of its other obligations under the Seller Contract, the performance of which would not result in it breaching Sanctions applicable to it.
41.5 If at any time during the term of a Seller Contract CUDOS Markets becomes a Sanctioned Person, is involved in Sanctions Proceedings (other than for the sole purpose of providing information or evidence in respect of such proceedings) or contravenes Sanctions, the CUDOS Markets may in its absolute discretion and without affecting any other right or remedy available to it terminate the Seller Contract with immediate effect by written notice to the other party.
42. No Partnership etc
No Seller Contract shall make any party to it the agent of the other, or create a partnership, joint venture, employment or similar relationship between such parties, and no party shall have the power to obligate or bind the other party in any manner whatsoever, save only that CUDOS Markets shall act as disclosed agent for the applicable Seller solely where expressly stated in these Seller Terms. In all other respects, each party shall act at all times as an independent contractor for all purposes of the Seller Contract.
PART 4: TERMS OF USE
43. The CUDOS Markets Platform
43.1 By using the CUDOS Markets Platform each User confirms that they accept these Terms of Use and agree to comply with them.
43.2 Please note that these Terms of Use incorporate the General Terms which you also accept and agree to comply with by using the CUDOS Markets Platform.
43.3 In the event of a conflict between these Terms of Use and the General Terms, then the General Terms shall prevail.
43.4 The CUDOS Markets Platform is made available free of charge in the Territory. You are responsible for only using the CUDOS Markets Platform or any of the services available on the CUDOS Markets Platform within the Territory and agree not to use or access the CUDOS Markets Platform if any applicable laws in your country of residence prohibit you from doing so in accordance with these Platform Terms.
43.5 We do not guarantee that the CUDOS Markets Platform, or any content on it or associated with it (including any Crypto Asset Supported Network or other blockchain or mining networks, Cloud Mining Farms and the Mining Pool), will always be available or be uninterrupted. Access to the CUDOS Markets Platform is permitted on a temporary basis and we are not liable to you for any power outages, defects, system failures, mistakes, omissions, errors, transmissions issues, performance failures or operational delays with the CUDOS Markets Platform. We may suspend, withdraw, discontinue, maintain, or change all or any part of the CUDOS Markets Platform without notice. We will not be liable to you if for any reason the CUDOS Markets Platform is unavailable at any time or for any period. Without prejudice to the terms of these Platform Term, we may update the CUDOS Markets Platform and/or change the content on it at any time.
43.6 CUDOS Markets is the provider of the CUDOS Markets Platform and does not warrant the accuracy or reliability of the information displayed on the CUDOS Markets Platform or the services advertised by any User on the CUDOS Markets Platform. All Users should use their own discretion and judgement to use the CUDOS Markets Platform or enter into any contractual arrangements through the CUDOS Markets Platform.
43.7 Users are responsible for making all arrangements necessary for them to have access to the CUDOS Markets Platform. Users are also responsible for ensuring that all persons who access the CUDOS Markets Platform through their internet connection are aware of these Terms of Use and that they comply with them.
44. User Accounts
44.1 Users who wish to become a Seller on the CUDOS Markets Platform will need to request to register a Seller Profile in accordance with the Seller Terms set out in Part 3.
44.2 Users who wish to become a Buyer on the CUDOS Markets Platform will need to register an Account via the Account Registration process.
44.3 Please note the CUDOS Markets Platform is not targeted towards children and its use by children is prohibited. Accordingly, Users may only access and use the CUDOS Markets Platform and create their own Account if you are aged 18 or over (or if higher, at least the age of majority in the country in which you are resident). If a User is over 13 years of age but under 18, they may only access and use the CUDOS Markets Platform through a parent or legal guardian’s Account with their permission and review in compliance with these Platform Terms. Each User agree that they will not access and use the CUDOS Markets Platform in any way if they are under the age of 13.
44.4 Each User acknowledges and agrees that:
44.4.1 all the information that they provide to us in connection with their Account is complete and accurate;
44.4.2 they are the person whose details they have provided; and
44.4.3 they will notify us immediately if there are any changes to the information they have provided to us.
44.5 We have the right to disable any Accounts and/or passwords, at any time, if, in our reasonable opinion a User has failed to comply with any of the provisions of these Platform Terms.
44.6 If a User knows or suspects that anyone other than such User knows their Account login details, they must immediately notify us at [email protected].
44.7 Each User is responsible for any unauthorised use of their Account login details.
45. Acceptable Use
45.1 Users must not:
45.1.1 use the CUDOS Markets Platform in any way that breaches these Platform Terms or any applicable local, national or international law or regulation (including accessing by a VPN);
45.1.2 copy, or otherwise reproduce or re-sell any part of the CUDOS Markets Platform unless expressly permitted to do so in these Platform Terms; or
45.1.3 do any act or thing that might damage, disrupt or otherwise interfere with the operation of the CUDOS Markets Platform or any equipment, network or software used in operating the Platform.
46. User generated content
46.1 If it is the case that Users supply/upload any content to the CUDOS Markets Platform – whether it be pictures, text, sound recordings or anything else – the content they supply (“User Generated Content”) must comply with the following rules:
46.1.1 it must not be obscene, abusive, offensive or racist and it must not promote or propose hatred or physical harm against anyone;
46.1.2 it must not harass or bully another person;
46.1.3 it must be true and honest so far as they know;
46.1.4 it must not: (a) constitute pornography; or (b) be sexual or sexually suggestive involving minors;
46.1.5 it must not be defamatory of anyone;
46.1.6 it must not be unlawful;
46.1.7 it must not use the material or content or infringe the rights or privacy of anyone else (including any Intellectual Property Rights). For example, Users should not use images of well-known characters, footage or music (unless it is their own or they have permission to use it);
46.1.8 it must not contain someone else’s personal details or confidential information relating to other people;
46.1.9 it must not promote discrimination, whether based on ethnicity, race, sex, religion, nationality, disability, sexual orientation or age;
46.1.10 it must not promote or condone terrorism, violence or illegal behaviour;
46.1.11 it must not be harmful to minors in any way;
46.1.12 it must not impersonate any person, or misrepresent your identity or affiliation with any person;
46.1.13 it must not give the impression that it emanates from or is endorsed by us, if this is not the case; and
46.1.14 it must not violate these Platform Terms.
46.2 We reserve the right to refuse to accept or refuse or cease to use any User Generated Content supplied by any person that we think contravenes clause 46.1 above. If a User becomes aware of any User Generated Content that breaches clause 46.1 above, please contact us on [email protected], providing the User’s full name and address, along with details of: (a) the date on which it was posted and where it can be found on the CUDOS Markets Platform; (b) the username of the person who posted it; (c) reasons why the content should be deleted; and (d) copies of any communication with the person who posted it (if any).
46.3 In addition, we may from time to time provide interactive services on the CUDOS Markets Platform that shall enable you to upload User Generated Content, including:
46.3.1 comment facilities;
46.3.2 chat rooms; and/or
46.3.3 bulletin boards,
(together “Interactive Services”).
46.4 Where we provide an Interactive Service, we will use reasonable endeavours to provide information to you about the kind of service offered and if it is moderated. However, we are under no obligation to oversee, monitor or moderate any Interactive Service we provide.
46.5 If a User’s User Generated Content contains content owned or generated by a third party, the User shall, prior to supplying or uploading such content to the CUDOS Markets Platform, ensure that it has obtained all necessary authorisations, consents and permissions from that third party to do so.
47. Viruses
47.1 We do not guarantee that the CUDOS Markets Platform will be totally secure or free from bugs or viruses. Users are responsible for configuring their information technology, computer programmes and platform in order to access the Platform and we recommend that Users use their own virus protection software.
47.2 Users must not misuse the CUDOS Markets Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. Users must not attempt to gain unauthorised access to the CUDOS Markets Platform, the server on which the CUDOS Markets Platform is stored, or any server, computer or database connected to the CUDOS Markets Platform. Users must not attack the CUDOS Markets Platform via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, a User would commit a criminal offence under the Computer Misuse Act 1990 (or other applicable national legislation). We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing such User’s identity to them. In the event of such a breach, such User’s right to use the CUDOS Markets Platform will cease immediately.
48. CUDOS Markets Platform Content And Third Party Sites
48.1 We do not guarantee that the information or content contained on the CUDOS Markets Platform (including in relation to the CUDOS Markets Fees, Charges or other pricing), any Listing, Activated Seller Account, Activated Seller Profile, Buyer Account or any third party sites associated with the CUDOS Markets Platform (“Associated Content”) is accurate and Users should carry out their own due diligence before using the CUDOS Markets Platform. We will not be liable to Users for any loss or damage if for any reason the CUDOS Markets Platform or any Associated Content is incorrect.
48.2 Where our site contains links to other sites and resources provided by third parties, these links are provided for Users’ information only. Such links should not be interpreted as approval by us of those linked websites or information Users may obtain from them nor are we liable for any charges, fees or costs Users may incur by using these sites and resources. We have no control over the contents of those sites or resources. CUDOS Markets will not be liable for any Losses that may arise from a User’s use of them.
49. Payments and Crypto Asset Transfers
49.1 NFT Products have no inherent or intrinsic value and their price may be subject to market fluctuations and sudden and significant increases or decreases in value. CUDOS Markets does not accept any liability regarding this market volatility and other risks involved in generating, selling or trading NFT Products. An NFT is not a currency, substitute for currency, investment, security, share, debt or loan or derivative instrument.
49.2 Nothing on this CUDOS Markets Platform or otherwise communicated or provided by CUDOS Markets or any of our group companies constitutes a prospectus or offering document or is an offer, recommendation or advice to sell or solicitation of an offer to sell or purchase an NFT Product or any investment, security or share.
49.3 We do not guarantee that any payments, fees, Charges, Crypto Asset or other monies owed to Users by any third party, mining network or Mining Pool will be paid within a reasonable period, or at all, or will not be less than potential HR Rewards, Net HR Rewards or earnings associated with their use of the CUDOS Markets Platform.
49.4 Users are responsible for linking their Account and/or Buyer Wallet with the correct payment method to receive any funds payable to them. We do not accept any responsibility for any loss of payments, charges, fees or other monies owed to any User as a result of their Account details being lost, inputted incorrectly, or fraudulently used or as a result of the User losing the private keys associated with any Wallet used to receive such payments, fees, charges or other monies.
49.5 CUDOS Markets will not be responsible or liable to Users for any use, exchange, trading, purchase or sale of any NFT Product or other Crypto Asset, or any Losses resulting from any such User activity.
49.6 Each User warrants and agree that any Crypto Asset Address to which the Crypto Asset shall be Transferred in accordance with these Platform Terms is a relevant Crypto Asset Supported Network compatible blockchain address created and controlled by the User alone, and to which the User alone holds its associated private keys.
49.7 Any obligation on CUDOS Markets to effect a Transfer of any Crypto Assets in accordance with these Platform Terms is subject to the following conditions being satisfied (together the “Transfer Conditions“) that:
49.7.1 the relevant Crypto Asset Supported Network is and remains operational; and
49.7.2 any Transfer of Crypto Assets by CUDOS Markets in accordance with the terms of these Platform Terms will not cause CUDOS Markets or any of its affiliates to be in breach of any applicable law, including that on such date trading Crypto Assets or making payments in Crypto Assets: (I) is not prohibited under any applicable law; and (II) is not a regulated activity or an activity that requires any form of regulatory authorisation, licence, permit or approval, and/or does not fall under any regulatory licensing regime, in each case under any applicable law.
49.7.3 The parties agree that if any of the Transfer Conditions are not satisfied and accordingly CUDOS Markets cannot (or does not) Transfer the relevant Crypto Assets, the parties shall discuss (each acting reasonably) an alternative means, method or type of payment and CUDOS Markets shall not be nor deemed to be in breach of these Platform Terms (or any other agreement) for any failure to Transfer any part of the Crypto Assets to the relevant Crypto Asset Address] in such circumstances.
49.8 In connection with any Transfer of any Crypto Assets, Users expressly acknowledge and agree:
49.8.1 where (i) the details of any Crypto Asset Address are incorrect or incompatible with the relevant Crypto Asset Supported Network (howsoever caused) then the User may lose the ability to access the Crypto Assets or may not receive the Crypto Assets; or (ii) where the User loses the private keys and/or access to any Crypto Asset Address, or any Crypto Asset Address is compromised or becomes inaccessible, then the User may lose or lose the ability to access the Crypto Assets after they are Transferred to such Crypto Asset Address. In such circumstances Users shall not be entitled to any further remittance, payment, compensation or claim (whether in contract, tort (including negligence) or otherwise) under these Platform Terms and CUDOS Markets will not be liable to Users for any claim (whether in contract, tort (including negligence) or otherwise) or to make any further remittance, payment or transfer to Users under these Platform Terms;
49.8.2 neither CUDOS Markets nor its affiliates controls any Crypto Asset Supported Network. Accordingly, CUDOS Markets gives no warranty or representation that: (i) the relevant Crypto Asset Supported Network will validate, implement or give effect to any Transaction; nor (ii) even if a Transaction Hash is issued by the relevant Crypto Asset Supported Network and all activities relating to any Transfer are complete, that: (A) the relevant Crypto Assets will be received at the relevant Crypto Asset Address; or (B) the relevant Transaction will remain recorded on the relevant Crypto Asset Supported Network;
49.8.3 governance of the Crypto Asset Supported Networks is decentralised, and changes to the Crypto Asset Supported Networks, their nature, operation, governance and/or its state can arise and be proposed and voted on in a number of ways. Accordingly, under no circumstances shall CUDOS Markets be liable to Users (whether in contract, tort (including negligence) or otherwise) for any loss, damage, liability or harm arising out of or in connection with any changes made to the Crypto Asset Supported Networks (including in relation to their operation, state and/or governance), including in respect of any changes made which result in: (a) a User suffering any loss or damage in connection with these Platform Terms or otherwise; (b) changes to the balance of any account within Users’ control on the relevant Crypto Asset Supported Network ; or (c) failure to receive any Crypto Assets (including in circumstances where we are limited, restricted or prevented from Transferring the Crypto Assets in the manner and as envisaged under the terms of these Platform Terms];
49.8.4 following the Transfer of the relevant Crypto Assets to the relevant Crypto Asset Address: (i) the User irrevocably releases CUDOS Markets from any and all liability with respect to the transfer of the Crypto Assets, including releasing CUDOS Markets from any further action(s) required to ensure the Transaction has been, and remains, recorded in a block that has been deployed on the relevant Crypto Asset Supported Network and/or that the relevant Crypto Assets are received by the relevant Crypto Asset Address, and (ii) under no circumstances shall CUDOS Markets be liable to Users (whether in contract, tort (including negligence) or otherwise) for any delay or failure resulting in such transaction no longer being recorded in a block that has been deployed on the relevant Crypto Asset Supported Network and/or for any Crypto Assets not successfully reaching any Crypto Asset Address; and
49.8.5 any changes to Gas Fees will not be communicated by CUDOS Markets to Users, and each User is responsible for checking the relevant online blockchain gas information to ensure that they are aware of the changes to Gas Fees associated with any relevant Crypto Asset Supported Network from time to time.
49.9 The parties agree and acknowledge that the following risks are inherent in the transfer and receipt of digital assets under these Platform Terms:
49.9.1 there is a risk that Crypto Assets could lose all or substantially all of their value in a short period of time and the nature of digital assets including Crypto Assets may mean that technological difficulties experienced by digital asset platforms and networks which may prevent the access to or use of the Crypto Assets;
49.9.2 CUDOS Markets gives no warranty or representation as to the regulatory status of the NFT Products or any other Crypto Assets and neither CUDOS Markets nor any of its affiliates, officers, directors, employees or agents, nor any advisor of CUDOS Markets are providing any legal, regulatory, or other specialist advice to Users in respect of the compliance of the NFT Products or any other Crypto Assets and/or the Crypto Asset Supported Networks with securities laws or other relevant financial services laws and regulations and such persons shall have no liability to, nor shall they assume any duty of care to, Users in respect of any such laws or regulations; and
49.9.3 legislative and regulatory changes or actions at state or international level may adversely affect the use, transfer, exchange, and value of Crypto Assets. It may be illegal, now or in the future, to acquire, own, hold, sell or use Crypto Assets or to exchange them for fiat currency in one or more countries.
49.10 Users are responsible for ensuring that any Wallet connected to the CUDOS Markets Platform is compatible with the CUDOS Markets Platform and the relevant Crypto Asset Supported Network. Users are responsible for ensuring that any NFT Product purchased via the CUDOS Markets Platform is capable of being received by the relevant User Wallet connected to the CUDOS Markets Platform for receipt of the NFT Product.
49.11 Users acknowledge and accept that their personal data and details of their transactions may be disclosed or may be required to be disclosed to government agencies and law enforcement, whether or not CUDOS Markets has received a court order.
50. Third Party Wallet
50.1 Users agree to use any Wallet in accordance with the terms and conditions of the applicable third party Wallet service provider. CUDOS Markets does not have custody or control over any User Wallet, or the NFT Products or Crypto Assets associated with the relevant Crypto Asset Address associated with such Wallets. The aforementioned Wallets are controlled by the User and their respective Wallet service providers. CUDOS Markets is not responsible for the security of such Wallets and the private keys that correspond with the relevant Crypto Asset Address associated with any of these Wallets should not be disclosed to CUDOS Markets. Users are responsible for keeping its Wallet(s) secure and maintaining the confidentiality of any login information used to access its Wallet(s). CUDOS Markets is not liable for any Losses any User may incur as a result of its Wallet being compromised or misused in any way..
51. Open Source Software
51.1 The Platform may utilize open source software. Such open source software is separately licensed by its copyright holder(s) under the terms of the open source licence that accompanies or is made available with such open source software. Users shall use any such open source software in accordance with the licence terms in relation to such open source software. Nothing in these Platform Terms limits User’s rights under, or grants Users rights that supersede, the terms and conditions of any applicable licence for such open source software. Notwithstanding anything to the contrary, CUDOS Markets makes no representation, warranty or other commitment of any kind regarding any open source software. CUDOS Markets shall, to the maximum extent permitted by law, have no liability associated with its use.
52. Taxes
52.1 Users are solely responsible to report and pay income or other taxes, if any, that apply to the User’s receipt of any Crypto Assets pursuant to these Platform Terms. Users shall fully and effectively indemnify CUDOS Markets and/or any other CUDOS Markets affiliate against any Tax Liability, together with any interest, penalties, costs, damages or expenses which CUDOS Markets or any affiliate may incur in connection with such a Tax Liability. Such indemnity may be satisfied in whole or in part by way of deduction from any payments due to the User from CUDOS Markets.
53. Sanctions
53.1 Each User warrants to CUDOS Markets on an ongoing basis that it is not:
53.1.1 a Sanctioned Person and has not been a Sanctioned Person at any time and nothing has occurred that could reasonably be expected to result in it becoming a Sanctioned Person;
53.1.2 contravening and has not contravened any Sanctions at any time; or
53.1.3 and has not in any way been involved in any Sanctions Proceedings (other than for the sole purpose of providing information or evidence in respect of such proceedings) at any time and there are no circumstances likely to give rise to any such Sanctions Proceedings.
53.2 In relation to its use of the CUDOS Markets Platform, each User shall:
53.2.1 not contravene any Sanctions;
53.2.2 not do, or omit to do, any act that will cause or lead CUDOS Markets to contravene any Sanctions; and
53.2.3 implement adequate policies and procedures to ensure compliance with Sanctions.
53.3 CUDOS Markets shall not be obliged to perform any of its obligations under these Terms of Use (as applicable) to the extent that the performance of such obligations would result in it breaching Sanctions applicable to it.
54. Intellectual property
54.1 We are the owner or licensee of all intellectual property rights in the CUDOS Markets IPRs (including in the CUDOS Markets Platform and its content and images). Those works are protected by intellectual property laws and treaties around the world. All such rights are reserved.
54.2 Users are not granted any right to use, and may not use, any of our Intellectual Property Rights other than as set out in these Platform Terms.
54.3 No part of the CUDOS Markets Platform, including the text, designs, graphics, photographs and images contained in it, may be copied, reproduced, republished, uploaded, re-posted, modified, transmitted or distributed or otherwise used in any way for any non-personal, public or commercial purpose without our prior written consent.
54.4 Any communications or materials that Users send to us through the CUDOS Markets Platform by electronic mail or other means will be treated as non-proprietary and non-confidential (other than communications in respect of an Order if a User uses the CUDOS Markets Platform to buy NFT Products). We are free to publish, display, post, distribute and otherwise use any ideas, suggestions, concepts, designs, know-how and other information contained in such communications or material for any purpose, including developing, manufacturing, advertising and marketing.
55. Assignment
55.1 CUDOS Markets may at any time assign at law or in equity (including by way of a charge or declaration of trust), sub-license, deal or novate any of its rights (and to the extent possible) obligations under these Platform Terms to any third party.
56. Invalidity
56.1 If any provision of these Terms of Use shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of these Terms of Use which shall remain in full force and effect.
56.2 If any provision of these Terms of Use is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such deletion(s) as may be necessary to make it valid.
56.3 The parties agree, in the circumstances referred to in clause 56.1 and if clause 55.2 does not apply, to attempt in good faith to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
57. THIRD PARTY RIGHTS
57.1 A person who is not a party these Terms of Use may not enforce any provision of these Terms of Use under the Contracts (Rights of Third Parties) Act 1999 except for any person to whom the benefit of the Terms of Use is assigned or transferred in accordance with clause 55.
Appendix A: Summary of all Fees and associated Services Provided by CUDOS Markets
| Service facilitated by CUDOS Markets | Fee taken but not kept by CUDOS Markets | Fee taken and kept by CUDOS Markets |
| Primary NFT sales | – | Initial NFT Sale Platform Fee (10%) |
| NFT Sale Price Deduction (10%) | ||
| Secondary NFT sales | Secondary Resale Royalty | Secondary NFT Sale Platform Fee (variable depending on the farm, maximum 12.5%) |
| CUDOS Markets Secondary Resale Royalty (2.5%) | ||
| Distribution of Hashrate rewards | Maintenance Fee | CUDOS Markets Maintenance Fee (variable depending on the farm, maximum 100% of HR Rewards) |
| Pool Fee (up to 2%) |
Thank you.
Platform Terms last updated 21 April 2023
