As an individual, if you are accessing or using any of the Services on behalf of an organisation, you represent and warrant that you have the required authority to bind that organisation to the Agreement. In this case, references in the Agreement to “you” and “your” are references to you as an individual AND to that organisation.
By undergoing the registration process to access and use any of the Services, you accept and agree to the Agreement in their entirety. If you do not accept the Agreement, you must stop accessing or using the Services.
- 1. GENERAL DEFINITIONS AND INTERPRETATION
- 1.1 In these Terms, the following words shall have the meanings ascribed below:
- 1.1.1 “APIs” means any form of application programming interface that Gomu makes available in its software-as-a-service products which you have subscribed to, which may include object code, software libraries, software tools, sample source code, published specifications, and any related developer documentation and other developer services, functions and features made available through such application programming interfaces by or on behalf of Gomu. APIs shall include any future, updated or otherwise modified version(s) thereof;
- 1.1.2 “API Data” means any content, images, photographs, illustrations, icons, texts, video, audio, written materials, software, sample codes, applications, specifications or other content, materials or data made available to you through the APIs;
- 1.1.3 “Applicable Law” means laws, rules, regulations, regulatory guidance, regulatory requirements and any form of subsidiary legislation, resolution, policy, guideline, concession or case law of the relevant jurisdiction from time to time having the force of law and relevant to Gomu’s provision of, and a party’s access to and use of, the Services and Services Data;
- 1.1.4 “Confidential Information” means all proprietary and confidential information and materials of Gomu, and/or any of our customers, clients or suppliers which is designated as such, or which by its very nature should obviously be treated as secret and confidential including any non-public information disclosed to you via the Services and Services Data, trade secrets, know-how, strategies, inventions, operations, compliance information, customer lists, personal data of the Gomu's customers, plans, market opportunities and business affairs (in each case whether disclosed orally, in writing, electronically or in any other form);
- 1.1.5 “End User” means end users of Your Product;
- 1.1.6 “Intellectual Property Rights” means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, domain names and all similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and (e) wherever existing;
- 1.1.7 “NFT” means a non-fungible token or similar digital item implemented on a blockchain, which uses smart contracts to link to or otherwise be associated with certain content or data;
- 1.1.8 “NFT Hub Services” means any and all services offered by Gomu in relation to the proprietary digital platform provided by Gomu on a software-as-a-service basis that, among other features, includes a range of tools for you to build and customise blockchain-based online marketplaces and community hubs to facilitate Web 3.0 community-focused experiences for your End Users and enable your End Users to view, swap, buy and sell NFTs, and other related services made available by Gomu from time to time;
- 1.1.9 “Order Form” means an ordering document in the form prescribed by Gomu, specifying the Services and Services Data to be made available to you that is entered into between Gomu and yourself, including any exhibits thereto;
- 1.1.11 “Services Data” means any content, images, photographs, illustrations, icons, texts, video, audio, written materials, software, sample codes, applications, specifications or other content, materials or data made available to you through the Website, the APIs and/or the NFT Hub Services, and includes API Data;
- 1.1.12 “Your Material” means any content, images, photographs, illustrations, icons, texts, video, audio, written materials, software, sample codes, applications, specifications or other content, materials or data of yours, in any form, that is submitted to us through the Services.
- 1.1.13 “Your Product” means and includes no more than one:
- (a) the website, domain, subdomain, software application, channel, bot, or service, which is owned and operated by you, and which you have registered as either a publisher of API Data or developer using API Data; and/or
- (b) the blockchain-based online marketplace and community hub which is operated by you, and which you have built and customised using the NFT Hub Services,
as the case may be.
- 1.2 Where applicable:
- 1.2.2 the expression “written” or “in writing” means the representation or reproduction of words or symbols or other information in a visible form by any method or combination of methods, whether sent or supplied in electronic form (including but not limited to, electronic mails) or otherwise; and
- 1.2.3 The terms "include" and "including" are deemed to include the phrase "without limitation" immediately thereafter.
- 1.4 Any reference to any law, statute or regulation or enactment shall include references to any statutory modification or re-enactment thereof or to any regulation or order made under such law, statute or enactment (or under such a modification or re-enactment).
- 2. ELIGIBILITY AND REGISTRATION
- 2.1 In order to access and use any of the Services, you will need to register for the relevant account with Gomu (the “Gomu Account”). You must be at least 18 years old to register for a Gomu Account and to otherwise use the Services. During the registration process, we will ask you for information, including your name and other personal information to verify your identity, and a method of payment. You must provide the information that we require and you must ensure that any information you provide to us is complete, accurate, up-to-date, true and not misleading.
- 2.2 We may reject or accept your application(s), or limit the number of Gomu Accounts that you may hold, at our sole discretion. We may require additional information, documentation or clarification in respect of any application you make, and we reserve the right not to proceed with an application until we are satisfied it is in line with the Agreement. If you don’t provide us with the information we require, or if any of the information you provide is incomplete or inaccurate, your application may be rejected. If any of the information that you provide us in support of your application changes or becomes inaccurate, you must inform us in writing, and we may reconsider your registration status.
- 2.3 You are responsible for all activities conducted on your Gomu Account and you agree that you must:
- 2.3.1 keep your Gomu Account information (including login details and payment details) confidential and secure, and not provide any other person with access to your Gomu Account; and
- 2.3.2 promptly notify Gomu if you suspect any unauthorised access to or use of your Gomu Account.
- 2.4 Without limiting its other rights and remedies, Gomu reserves the right to block or deny access to, suspend or terminate your Gomu Account at any time in Gomu’s absolute discretion, without giving any reason or prior notice and Gomu shall not be liable or responsible for any claim, demand, action, proceeding, damage, liability, cost, loss or expense arising out of the same.
- 3. LICENCE
- 3.1 Your use of and access to our Services must comply at all times with the Agreement and with the use case(s) we have approved for access to our Services. If we grant access to you for the use of any Services (including any Services Data), access is granted on the basis of the Agreement and for a personal, limited, non-exclusive, non-transferable, non-sublicensable and revocable licence to use the Services and reproduce, display, adapt, perform and store the Services Data solely on Your Product for use solely by End Users (and for the avoidance of doubt, you are not permitted to licence, sublicense or resell any of the Services or Services Data).
- 3.2 All rights not expressly granted to you hereunder are reserved by Gomu, its third-party providers and other respective owners, if any.
- 3.3 If any of the Services contains software or code subject to open source licences, you must use such Services in accordance with the terms of the applicable open source licences.
- 3.4 Your rights to access and use API Data via the APIs under Clause 3.1 shall vary depending on the subscription plan selected, and the terms of each subscription plan shall be as published on the relevant website(s) of Gomu from time to time.
- 3.5 Except for the licence granted under Clause 3.1, you have no other rights to the Services and/or the Services Data, and you shall not, and shall not permit any End User to, except as permitted in the licence grant above: modify, edit, copy, distribute, reproduce, publish, display, perform, license, sell, rent, lease, loan, create derivative works of, reverse engineer, alter, enhance, provide access to or in any way exploit the Services or Services Data in any manner. For clarity (a) you may charge a fee for such usage by End Users, (b) you may temporarily store the Services Data to the extent necessary in order to make the Services Data available via Your Product, and (c) you may not distribute the Services Data on a standalone basis but instead only as part of Your Product. If you breach any obligation under the Agreement, the said licence will terminate automatically.
- 4. FEES AND PAYMENT
Services are deemed delivered upon the provision of access to you or for your benefit. If there are fees set forth in an Order Form, fees will be invoiced and payable on an annual upfront basis, or as otherwise set forth in the Order Form. All payments shall be made in the manner prescribed and/or made available by Gomu and in the currency set forth on the corresponding invoice. All fees set forth in the invoice are due within the time prescribed by Gomu in respect of the relevant invoice. You shall be responsible for all taxes arising under the Agreement, including, but not limited to, sales, use, gross receipts, excise value added, and goods and services taxes (but not including Gomu’s income taxes), in addition to any duties, costs of compliance with export and import controls and regulations, and other governmental assessments, and, if applicable, withholding taxes so that after payment of such taxes the amount Gomu receives is not less than the fees set forth in the Order Form. In the event that a double taxation treaty applies, which provides a zero or reduced withholding tax rate, you agree to not withhold or withhold at the reduced tax rate in accordance with the double taxation treaty. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount of interest for late payment allowed by applicable law, whichever is less.
- 5. YOUR RESPONSIBILITIES
- 5.2 You acknowledge and agree that the Services are not a marketplace, and any contract of sale made through Your Product is directly between the buyer and the seller. You are responsible for the creation and operation of Your Product, Your Material, the goods and services that you may sell through the Services, and all aspects of the transactions between you and your End Users. You represent and warrant that Your Product, Your Material and the goods and services you sell through the Services will be true, accurate, and complete, and will not violate any applicable laws, regulations or rights of third parties. For the avoidance of doubt, Gomu will not be the seller or merchant of record and will have no responsibility for Your Product or transactions made through Your Product.
- 5.3 You will comply with all Appliable Law (including but not limited to obtaining and complying with the requirements of any license or permit that may be necessary to operate Your Product or that may be held by you) in your use of the Services and your performance of obligations under the Agreement.
- 5.4 Save as otherwise expressly permitted by Gomu, you shall not, and shall not permit any End User, to:
- 5.4.1 copy, modify or create derivative works of the Services or any Services Data;
- 5.4.2 copy, manipulate or aggregate any Services Data for the purpose of making it available to any third party;
- 5.4.3 trade, sell, rent, loan, lease license or provide any Services Data or access to the Services, whether commercially or free of charge;
- 5.4.4 use or introduce to the Services any data mining, crawling, "scraping", robot or similar automated or data gathering or extraction method, or manually access, acquire, monitor or copy any portion of the Services, or download or store Services Data;
- 5.4.5 make excessive requests for information or take any action that interferes with, disrupts or imposes an undue burden on the Services or any server or network connected to the Services or negatively affects the quality or availability of any Services Data, or speed or functionality of the Services;
- 5.4.6 introduce a virus, Trojan horse, worm, time bomb or other malware to the Services, or use any device, software or routine to bypass any software or hardware that prohibits volume requests for information;
- 5.4.7 violate, bypass or circumvent any security measure intended to limit or prevent access to the Services or Services Data, or otherwise attempt to gain unauthorized access to the Services, any Services Data or to any computer systems or networks connected to the Services or any of Gomu’s servers, whether through hacking, password mining, unauthorized use of another user's password/credentials or any other means;
- 5.4.8 interfere with, disrupt, modify, reverse engineer or decompile any Services, Services Data or any part thereof;
- 5.4.9 restrict, inhibit or interfere with use of the Services by any other user (including by hacking the Services);
- 5.4.10 introduce or otherwise distribute through the Services any computer program that damages, interferes with, intercepts, collects, releases or discloses any system, data or personal information of ours or any third party;
- 5.4.11 except as provided herein, make use of any of our trademarks, service marks, trade names or logos or those of any third party displayed in the Services; or modify or remove any copyright or other proprietary notice in the Services Data; or
- 5.4.12 use the Services or Services Data for any unlawful purpose, including in contravention of any Applicable Law (including sanctions laws and other laws relating to anti-money laundering, anti-bribery and corruption, tax evasion or similar tax crimes, including facilitation, and other financial crimes) or third-party rights.
- 5.5 You shall take all reasonable measures to ensure that the following prohibited activities are not carried out by End Users on Your Product:
- 5.5.1 Market manipulation. No End User shall sell an NFT to himself (including to another wallet owned or controlled by such End User) to make it appear to others that an individual NFT is sold for a certain price or has a certain amount of market activity. No End User shall sell or buy an NFT as part of a plan with another person or persons to manipulate the NFT market of Your Product. No End User shall report an NFT as stolen in an attempt to manipulate or limit market access to that NFT.
- 5.5.2 Regulated financial products and activities. No End User shall offer, list, exchange, or sell any NFT that entitles, or has been advertised as entitling, the NFT owners to financial rewards, revenue shares, or that may otherwise constitute or represent securities or derivatives. Fundraising on Your Product is prohibited, including fundraising for a business, NFT project, protocol, or platform. NFTs that facilitate unlawful gambling, prostitution, escort services, sale of narcotics or controlled substances, threaten or promote violence, support or fundraise for terrorist organizations, or contain content exploitative of children are also prohibited.
- 5.5.3 No End User shall list for sale any NFT which was obtained unlawfully, including, but not limited to, by way of hacking, social engineering, or a phishing scam.
- 5.6 Additionally, you acknowledge and agree that you (and not Gomu) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, software and services needed for you to access and use the Services, and paying all charges related thereto.
- 6. OWNERSHIP AND INTELLECTUAL PROPERTY
- 6.1 Except as expressly granted herein, all Intellectual Property Rights in and to the Services and the Services Data shall vest and remain vested in Gomu or its licensors.
- 6.2 You must not make any enhancements, derivatives, changes, modifications, alterations or adaptations (“Changes”) of or to the Services or Services Data in Your Product without our express written consent. For the avoidance of doubt, we will own all rights, title and interest (including any Intellectual Property Rights) in any such Changes to our Services or Services Data, without you having any right of compensation for the same.
- 6.3 You acknowledge and agree that:
- 6.3.1 the Services and Services Data contain confidential and proprietary information and you shall not conceal, modify, remove, destroy or alter in any way any proprietary markings of Gomu on or in the Services, Services Data or any related materials and documentation;
- 6.3.2 the look and feel of the Services, including all page headers, custom graphics, button icons, and scripts, is the service mark, trade mark, and/or trade dress of Gomu and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Gomu;
- 6.3.3 all trade marks, logos, service marks, trade names, business names and all other product or service names or slogans (collectively, the “Trade Marks”) which appear in any of the Services are registered and unregistered Trade Marks or are licensed for use by Gomu by third parties;
- 6.3.4 Gomu’s Trade Marks, including “Gomu”, are solely the property of Gomu. The absence of a name, logo or other mark herein does not constitute a waiver of any and all Intellectual Property Rights that Gomu has established. All other Trade Marks which appear on any Services or Services Data are the property of their respective owners;
- 6.3.5 nothing contained in any of the Services should be construed as granting, by implication or otherwise, any licence or right to use any Trade Marks displayed in any of the Services without the written permission of Gomu or such third party who owns the Trade Mark; and
- 6.4 The use or misuse of the Intellectual Property Rights of Gomu or its licensors, except as expressly permitted by the Agreement, is prohibited. You shall, and shall require your End Users to, notify Gomu at firstname.lastname@example.org promptly upon becoming aware of any unauthorised access to or use of the Services or Services Data by any individual or entity or of any claim that the Services or Services Data infringes upon any Intellectual Property Rights of any third party.
- 6.5 Gomu provides Services Data through the Services that are copyrighted and/or trademarked work of Gomu or Gomu’s third-party licensors and suppliers. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by Gomu and such third parties through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property of Gomu and such others. Accordingly, you shall protect the proprietary rights of Gomu and all others having rights in the Services during and after the term of the Agreement and comply with all reasonable written requests made by Gomu to protect its and others’ contractual, statutory, and common law rights in the Services and Services Data.
- 6.6 You warrant and represent that you or your third-party licensors will own all rights, title and interest (including any Intellectual Property Rights) in and to Your Material, and you grant to Gomu a non-exclusive and royalty-free licence to use and copy Your Material for the purposes of facilitating and administering your access to and use of our Services and Services Data. You represent and warrant that the use of Your Product by the End Users, our use and any copying of Your Material, will not violate or infringe the rights (including Intellectual Property Rights) of any third party.
- 7. TRANSACTIONS WITH THIRD PARTIES
Under no circumstances shall it be construed that, in the case of any services, products or programmes of any third party accessible through the Services, Gomu is a party to any transaction between you and such third party or that Gomu endorses, sponsors, certifies, or is involved in the provision of such services, products, applications or programmes of such third party and Gomu shall not be liable in any way for any products obtained and/or purchased from or services rendered by any such third party which shall be the sole responsibility of the relevant third party.
- 8. REQUIREMENTS FOR YOUR PRODUCT
- 8.1 Your Product shall not contain any content that is unlawful, threatening, abusive, libelous, defamatory, or otherwise inappropriate, as determined by us in our sole discretion.
- 8.2 Your Product shall not contain any information that, in our sole discretion, may create the false impression that you, Your Product or any other service, person or entity is associated with, sponsored by or otherwise endorsed by Gomu, or that any activity engaged in by you or anyone else has been approved by Gomu.
- 8.3 Your Product shall not contain any content or information that violates or infringes any Intellectual Property Rights or other proprietary rights, or any right to privacy or publicity of, or defames, any person or entity.
- 8.4 Gomu may require you to provide attribution to Gomu in Your Product in the manner to be prescribed by Gomu and to include a hyperlink to the website of Gomu (https://www.gomu.co/) (the “Attribution Link”).
- 8.5 Gomu may require you to remove the Attribution Link at any time and upon notifying you of the same, you must promptly (and, in any event, within five (5) business days) remove all Attribution Links from Your Product.
- 8.6 You acknowledge and agree that we may, for marketing and promotional purposes, produce and distribute depictions of your (or your End Users’) use of the Services and Services Data, including screenshots of Your Product and your Trade Marks. You grant us all necessary rights for the aforesaid purposes, including but not limited to a non-exclusive, perpetual, royalty-free licence for such use.
- 9. FEEDBACK
- 9.2 If you send or transmit any communication, including but not limited to feedback, questions, comments or suggestions to Gomu, whether by letter, email, telephone or otherwise (collectively, “Feedback”), all such Feedback is, and will be treated as non-confidential and non-proprietary. You hereby assign to Gomu all right, title, and interest in, and Gomu is free to use, without any attribution or compensation to you, any ideas, concepts, know-how or techniques or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to enhancing the Services, or otherwise developing, manufacturing, licensing, marketing and selling products and services based on or containing such Feedback. You also understand and agree that Gomu is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution. Gomu may use aggregated and statistical data derived from usage of the Services.
- 10. DISCLAIMERS AND LIMITATION OF LIABILITY
Please read this section very carefully.
- 10.2 We neither own nor control any blockchain or cryptocurrency token network on which any smart contract is based, nor do we own or control any smart contract on which any NFT listed for sale on Your Product is based. Further, transactions on a blockchain cannot be reversed and Gomu has no ability to reverse any transaction on any blockchain. All transactions on Your Product are final and Gomu shall have no liability in respect of any transactions on Your Product.
- 10.3 Use of the Services and the Services Data is at your own risk, and you are responsible for evaluating the accuracy, completeness or usefulness of any information or other content available through the Services. The Services and all Services Data are provided “as is” and to the maximum extent not prohibited by Applicable Law, provided without warranty of any kind, express or implied including (without limitation) fitness for a particular purpose, merchantability, title and non-infringement.
- 10.4 Any Services Data provided through the Services, including the API Data provided through the APIs, is strictly for informational purposes. Nothing on or in the Services shall constitute or be construed as an offering of any currency or any financial instrument or as investment advice or investment recommendations (such as recommendations as to whether to purchase a currency or instrument) by Gomu or a recommendation as to an investment strategy by Gomu. Services Data accessible through the Services should not be considered as information sufficient upon which to base an investment strategy. No Services Data accessible through the Services is tailored to the specific needs of any individual, entity or group of individuals. Gomu expresses no opinion as to the future or expected value of any currency, security or other interest. Gomu does not explicitly or implicitly recommend or suggest any investment strategy of any kind. Services Data accessible through the Services may not be used as a basis for any financial or other product without the express prior written consent of Gomu.
- 10.5 Gomu does not review all third-party data or Services Data for accuracy, does not review Services Data for completeness or reliability, and does not warrant or guarantee the accuracy, completeness, reliability or any other aspect of any Services Data, including in particular, the API Data provided through the APIs which is submitted to Gomu by unrelated third-party providers, or derived from data submitted to Gomu by unrelated third-party providers.
- 10.6 The Services and the Services Data published within the Services may include inaccuracies or errors. Gomu does not guarantee the accuracy, completeness, timeliness, security, availability or integrity of the Services or any Services Data, and disclaims all liability for any errors or other inaccuracies relating to, the Services or the Services Data. Gomu makes no representations about the suitability of the Services or any Services Data, or that the Services or any Services Data will be uninterrupted or operate in combination with any software, service, system or other data or information.
- 10.7 Gomu disclaims all warranties and conditions that the Services, its servers, or any email sent from Gomu, are free of viruses or other harmful components.
- 10.8 To the maximum extent permitted by Applicable Law, you agree that you will bring any claim or cause of action arising from or relating to your access or use of the Services and/or Services Data against Gomu within two (2) years from the date on which such claim or action arose or accrued or such claim or cause of action will be irrevocably waived.
- 10.9 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GOMU ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF ANY SERVICES DATA; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR OR ANY END USER’S ACCESS TO OR USE OF THE SERVICES AND/OR THE SERVICES DATA; (III) ANY UNAUTHORISED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY SERVICES DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY SERVICES DATA POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
- 10.10 IN NO EVENT SHALL GOMU (AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, AGENTS, AND AFFILIATES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, YOUR OR ANY END USER’S ACCESS TO OR USE OF THE SERVICES AND SERVICES DATA OR WITH THE DELAY OR INABILITY TO ACCESS, DISPLAY, OR USE THE SERVICES; ANY COMPUTER VIRUSES, INFORMATION, SOFTWARE, LINKED SERVICES AND PRODUCTS OBTAINED THROUGH THE SERVICES; OR OTHERWISE ARISING OUT OF THE ACCESS TO OR USE OF THE SERVICES WHETHER BASED ON A THEORY OF NEGLIGENCE, CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF GOMU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- 11. INDEMNIFICATION
Except to the extent prohibited under Applicable Law, you shall indemnify, defend and hold harmless Gomu and its members, managers, directors, officers, employees, partners, consultants, contractors, service providers, agents, successors and assigns from and against any and all suits, actions, proceedings and claims by third parties, including, without limitation, End Users (whether threatened or actual), and all losses, liabilities, damages, judgments, costs and expenses (including reasonable attorneys' fees) arising out of, relating to or in connection with: (i) your or any End User’s use (or misuse) of or access to the Services and/or Services Data; (ii) publication of any Services Data on Your Product; (iii) your violation of any obligation under the Agreement; (c) your or any End User’s violation of any Applicable Law (including any applicable privacy laws and regulations); (iv) any claim that any information provided by or published on Your Product, including the Services Data, caused damage to, infringed upon, misappropriated or otherwise violated the rights of any third party, including infringement, misappropriation or other violation of third-party Intellectual Property Rights, or violation of any right of privacy or publicity; and/or (v) any dispute that you or any End User has with any third party relating to or in connection with Your Product, the Services or Services Data. Gomu reserves the right, at its own cost, to assume the exclusive defence and control of any matter subject to indemnification by you, in which event you will fully cooperate with Gomu in asserting any available defences and in the conduct of such defence.
- 12. PRIVACY
- 13. CONFIDENTIALITY
- 13.1 During your access and use of the Services and Services Data, you may obtain Gomu's Confidential Information. Subject to the Agreement, you agree to treat all of Gomu's Confidential Information as strictly confidential and shall not use or disclose such Confidential Information to any third party without our prior written consent. You agree to take proper care and all reasonable measures to protect the confidentiality of Confidential Information in accordance with all Applicable Law and applying not less than the same standard of care as you would apply to your own confidential information but not less than a reasonable standard of care.
- 13.2 Upon termination of your access to our Services, or at our request, you agree to destroy or return to us all of our Confidential Information in your possession or control and certify to us that this has been done. The confidentiality obligation continues to apply if any of our Confidential Information remains in your possession or control.
- 14. MODIFICATION TO THE SERVICES
At any time and in Gomu's sole discretion, Gomu may (in whole or in part) modify, suspend or discontinue the Services and/or any Services Data without notice, for any reason. You will not be charged for use of the Services after the date of any discontinuation. We shall have no liability to you or to any third party for any such modification, suspension or discontinuance.
- 15. ENFORCEMENT
The remedies available to Gomu under the Agreement are cumulative and in addition to any others available to Gomu. Gomu may seek all remedies available to it at law and in equity for any violation of the Agreement. Gomu may suspend, terminate or block your access to the Services (in whole or in part) and your right to publish or use Services Data for any violation, or suspected violation as we determine, without notice to you. Your violation of the Agreement shall be considered a breach of contract. We reserve the right, but do not assume any obligation, to investigate any suspected violation of the Agreement or any misuse of the Services. In addition, we further reserve the right to report any activity, data or persons to, and otherwise cooperate with: (i) law enforcement authorities; (ii) financial regulators; (iii) system administrators at Internet service providers, networks or computing facilities; and (iv) providers and/or third-party vendors if we suspect that you have violated the Agreement or that you or any End User has violated any Applicable Law. You acknowledge that such reporting or cooperation may include, without limitation, providing information relating to you and/or your use of the Services, including without limitation your email address, IP address or other identifying information, to law enforcement authorities, financial regulators, third-party providers, vendors or system administrators. Further, we may disclose any information we think necessary to comply with Applicable Law or other legal process or governmental or regulatory request.
- 16. GOVERNING LAW; SUBMISSION TO JURISDICTION
- 16.1 The Agreement and any and all claims, disputes or other legal proceedings by or between you and us, including but not limited to any claims or disputes that are in any way related to or arising out of the Agreement or your use of or access to the Services and Services Data, shall be governed by and construed in accordance with the laws of Singapore, without regard to any principles of conflicts of law.
- 16.2 You irrevocably submit to the non-exclusive jurisdiction of the courts of Singapore and consent to the service of process (whether personal or otherwise) by prepaid post (ordinary or registered) to your last known address in Gomu’s records which shall be conclusively deemed to be received by you on the day following such posting despite any evidence to the contrary.
- 16.3 You acknowledge that any breach of either of Clause 4 (Prohibited Activities) or Clause 6 (Ownership and Intellectual Property) would cause immediate and irreparable harm to Gomu, for which monetary damages would not be sufficient, and that, in addition to all other remedies available to Gomu at law or in equity, Gomu shall be entitled to seek injunctive relief without proof of damages or the posting of bond or other security in the event of such a breach or threatened breach.
- 17. TERM AND TERMINATION
- 17.1 The Agreement between you and Gomu shall continue for the duration set forth in the Order Form (the “Term”), unless otherwise terminated as provided herein.
- 17.3 Upon the termination or expiration of the Agreement, Gomu will provide you access to Your Material in a format and media reasonably accessible for thirty (30) days (or as otherwise mutually agreed between the Parties) and will thereafter use industry standard methods to delete or otherwise make inaccessible all Your Material. Notwithstanding the foregoing, Gomu shall retain, solely for security purposes, usage information related to the Services and Services Data and metadata related to the security of the Services, excluding Your Material (except for security-related information such as IP addresses, usernames, log-in attempts, and search queries) (“Security Logs”) for a period of two (2) years following the last event logged. Security Logs shall be retained subject to the other terms of the Agreement.
- 17.4 No termination or expiration of the Agreement shall limit or affect rights or obligations that accrued prior to the effective date of termination or expiration (including without limitation payment obligations). Clauses 6 (Ownership and Intellectual Property), 8 (Requirements for Your Product), 10 (Disclaimers and Limitation of Liability), 11 (Indemnification), 13 (Confidentiality), 16 (Governing Law; Submission to Jurisdiction), 17 (Termination) and 19 (General) shall survive any termination or expiration of the Agreement.
- 17.5 Termination is not an exclusive remedy and all other remedies will remain available.
- 17.6 All non-expired Order Forms shall automatically terminate upon the termination of the Agreement.
- 18. FORCE MAJEURE
In no event shall Gomu be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, infectious diseases, epidemics, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services. Our performance under the Agreement is subject to existing laws and legal process, and nothing contained in the Agreement limits our right to comply with law enforcement or other governmental or legal requests or requirements relating to your use of the Services or publication or use of any Services Data, or any information provided to, or gathered by, us with respect to such use.
- 19. GENERAL
- 19.2 You agree that no joint venture, agency, partnership, or employment relationship exists between you and Gomu and/or its affiliates as a result of the Agreement or use of the Services and Services Data.
- 19.3 The Agreement, and any rights and licenses granted thereunder, may not be transferred or assigned by you, but may be assigned by Gomu without restriction. Any attempted transfer or assignment by you in violation hereof shall be null and void.