Terms of Service

1 April 2022

Services Agreement

AlwaysNFT Pty Ltd (“the Service Provider”) is pleased to offer data storage services involving the use of AlwaysNFT.cloud (“the Services”) according to the terms and conditions in this Services Agreement (“this Agreement”). By creating an account to use the Services you agree to this Agreement. If you represent an organization, you represent and warrant that you are authorized to agree to this Agreement on behalf of your organization. If you do not agree to this Agreement, do not use the Services.

1. Services.

1.1      You may access and use the Services in accordance with this Agreement. The Services may include features or services that have separate rules specific to the feature or service. You will comply with all laws, rules, and regulations applicable to the use of the Services and any additional feature or service you use. You may access and use the Services solely for your internal business or personal purposes.  You may not resell these services without explicit authorization from AlwaysNFT.  You understand and agree that the Service Provider may change, suspend or discontinue any part of the Services and the Services as a whole. The Service Provider will notify you of any material change to or discontinuation of the Services by email or via the Service Provider website.

2. Registration and Your Account.

2.1      To register to use the Services you must create an account (“the Account”) with username and password and provide the Service Provider with the information requested in the registration process, including your email address. Do not disclose your username or password information to any unauthorized persons. You are responsible for all activities that occur under your Account, regardless of whether undertaken by you, your employees or a third party (including contractors or agents) and the Service Provider and its affiliates are not responsible for unauthorized access to your account. You will contact the Service Provider immediately if you believe an unauthorized third party may be using your Account or if your Account information is lost or stolen. You will provide complete and accurate information during the registration process and you will update it to ensure it remains accurate.

3. Your Data.

3.1      You are solely responsible for the development, content, operation, maintenance, and use of your data. You will ensure that your data, and your use of it, complies with this Agreement and any applicable law. You are responsible for properly configuring and using the Services and taking your own steps to maintain appropriate security, protection and backup of your data.

3.2      The Service Provider stores data in the Interplanetary File System (IPFS) network.  Data stored in IPFS is public, and when you request that the Service Provider maintains copies of your data in IPFS you understand that this data is accessible without restriction to the public.  If you wish to store sensitive data in IPFS you should use encryption to prevent unauthorized access.
 

3.3      The Service Provider stores your personally identifiable information (PII) – name, address, etc – in a cloud-based relational database. The Service Provider will use commercially reasonable efforts to prevent the unauthorized disclosure or destruction of your stored information and data. The Service Provider routinely collects and analyses metadata, excluding any personal data. The Service Provider uses this information to gauge service levels and application performance and for its own marketing purposes.  

3.4      For the purposes of this Section 3, the terms "controller", "personal data", "processor", "processing", shall have the meaning given to them by the European Union Regulation 2016/679 (“GDPR”). The Service Provider will process any personal data you include in your use of the Services (“the Customer Personal Data") on your behalf as a processor, and you are the controller of such data.

3.5      Each party undertakes to comply with all data protection legislation applicable to it ("Data Protection Law") and shall not knowingly cause the other to breach Data Protection Law.

3.6      The Service Provider will process Customer Personal Data only in accordance with your documented instructions and not for its own purposes. If the Service Provider is required to process Customer Personal Data for any other purpose by European Union or Member State law to which the Service Provider is subject, the Service Provider shall inform you of this requirement before the processing, unless that law prohibits this on important grounds of public interest.

3.7      The Service Provider will ensure that our personnel who have access to the Customer Personal Data have committed themselves to confidentiality and are aware of and comply with our duties and their personal duties and obligations under this Agreement.

3.8      The Service Provider will implement appropriate technical and organizational security measures to ensure a level of security appropriate to the risks that are presented by the processing of Customer Personal Data. In case of a personal data breach which affects Customer Personal Data, the Service Provider will notify you without undue delay after becoming aware of it.

3.9      You acknowledge and agree that the Service Provider may retain its affiliates and other third parties as sub-processors (all together "Sub-Processors") in connection with the provision of the Services having imposed on such Sub-Processors the same data protection obligations as are imposed on the Service Provider under this Agreement. The Service Provider will be liable to you for the performance of the Sub-Processors' obligations. The Service Provider will inform you in advance of any changes concerning the addition or replacement of third party processors.

3.10    The Service Provider will assist you, at your cost, to ensure compliance with the obligations under the GDPR with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.

3.11    Upon termination of this Agreement or upon your request, the Service Provider will destroy or return all Customer Personal Data to you (unless European Union or Member State law requires storage of the Customer Personal Data).

3.12    The Service Provider will make available to you all information reasonably necessary to demonstrate compliance with the obligations laid down in this section and allow for and contribute to audits, including inspections, conducted by you or an auditor mandated by you.

4. Fees.

4.1      Subscriptions. The Service Provider bills on a subscription basis for fees associated with your Account (“Fees”). You will be billed retroactively on a monthly basis (“Billing Cycle”). At the end of each Billing Cycle your Account will be automatically renewed for the same period unless you or the Service Provider cancel it.  You may cancel your Account online.

4.2      Account information. When you register your Account you are required to provide the Service Provider with a valid payment method, including credit card, and accurate and complete billing information.  In doing so, you automatically consent to the Service Provider charging all fees for your Account using that designated payment method.  If your designated payment method should fail for any reason at all, the Service Provider will issue an electronic invoice for you to pay the outstanding amount manually within a certain due date.  

4.3      Fee changes. At any time in its sole discretion and after providing reasonable prior notice, the Service Provider is entitled to amend the Fees for your Account, such changes to take effect at the end of the current Billing Cycle.  You can elect to cancel your Service during the current Billing Cycle but your continued use of the Service for the next Billing Cycle constitutes your agreement to the amended Fees.

4.4      Free Services.  The Service Provider offers a free capability (“the Free Service”) for limited amounts of storage.  This is provided in certain circumstances as more fully outlined on the Service Provider’s website (“the Website’”).  The Free Service may be modified or cancelled at any time by the Service Provider providing you with 30 days prior notice by email.

4.5      Free trial.  The Service Provider may in its sole discretion provide a free trial for Services for a limited period of time (“the Free Trial”). You are required to provide all necessary Account information for a Free Trial but will not be charged during the Free Trial.  At the end of the Free Trial, the Service Provider will automatically commence charging you for the relevant Fees.  The Service Provider may amend the conditions of the Free Trial at any time and without notice.  

4.6      Pricing.  Pricing is primarily based on the amount of data stored in the Service Provider network (“the Network”) and the level to which that data is replicated into multiple locations.  The total price will generally be based upon the sum of all replicated copies of the data, although this may be modified by special offers and other conditions applied at the Service Provider’s discretion.  In the event that you exceed the storage limits of your configured plan, the Service Provider may temporarily exceed your storage limit without additional charge for a period (typically 30 days).  After this period you will need to pay the required higher rate notified to you by the Service Provider failing which the excess data will be removed from the Network. The Service Provider will attempt to provide you with reasonable notice of these events.

5. Term; Termination

5.1      Term; Termination. The term of this Agreement commences when you create an Account and will remain in effect until terminated in accordance with this Agreement. You may terminate this Agreement for convenience by terminating all Services under your Account, and the Service Provider may terminate this Agreement for any reason by providing you 30 days’ advance notice. The Service Provider may also terminate your Account and this Agreement, or suspend your Account, immediately if  the Service Provider determines that: (a) your use of the Services poses a security risk to the Services or any third party; (b) your use of the Services may adversely impact the Services; (c) your use of the Services may subject the Service Provider, its affiliates, or any third party to liability; (d) your use of the Services may be fraudulent; (e) you are in breach of this Agreement; or (f) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If the Service Provider suspends your right to access or use any portion or all of the Services you remain responsible for all fees and charges you have incurred through the date of suspension and you will not be entitled to any credit or refund.

5.2      Effect of Termination. Upon termination of this Agreement (a) all your rights under this Agreement immediately terminate and (b) you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination. Upon termination your data will be removed from the Network.

6. Intellectual Property Rights and Ownership.

6.1      Your Data. You represent and warrant to the Service Provider that: (a) you or your licensors own all right, title, and interest in and to your data; (b) you have all rights in your data necessary to grant the rights contemplated by this Agreement; and (c) none of your data violates this Agreement, any applicable law or any third party’s intellectual property or other right.

6.2      The Service. You may not: (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Service; (b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Service; (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; (d) resell or sublicense the Service;  (e) attempt to disable or circumvent any security mechanisms used by the Services; (f) use the Services to perform a malicious activity; or (g) upload or otherwise process any malicious content to or through the Services.

6.3      No Other Rights. This Agreement does not transfer any right, title or interest in any intellectual property right to the other, except as expressly set forth in this Agreement. You are not obligated to provide the Service Provider with any suggestions or other feedback about the Services or otherwise, but if you do, the Service Provider may use and modify this feedback without any restriction or payment.

7. No Warranty.

7.1      The Services are provided on an "AS IS" and "AS AVAILABLE" basis and with no representation or warranty of any kind. Except to the extent prohibited by law, the Service Provider disclaims any implied or statutory warranty, including any implied warranty of merchantability or fitness for a particular purpose, and any warranty arising out of any course of dealing or usage of trade.

8. Limitation of Liability.

8.1      The Service Provider and its affiliates and licensors will not be liable to you for any indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, goodwill, use, or data). The Service Provider and its affiliates and licensors will not be responsible for any compensation, reimbursement, or direct damages arising in connection with: (a) your inability to use the Service, (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures, or commitments by you in connection with this Agreement or your use of or access to the Service; or (d) any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of your content or other data. The Service Provider and its affiliates’ and licensors’ aggregate liability for any permitted direct damages under this agreement will be limited to the amount you actually pay the Service Provider under this agreement for the Services that gave rise to the claim during the 12 months preceding the claim.

9. Indemnification.

9.1      You will defend, indemnify, and hold harmless the Service Provider, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to any third party claim concerning: (a) your use of the Services (including any activities under your Account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you; or (c) your data or the combination of your data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by your data or by the use, development, design, production, advertising or marketing of your data. If the Service Provider or its affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse the Service Provider for reasonable legal fees, as well as the relevant employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at the then-current hourly rates. The Service Provider will promptly notify you of any claim subject to this Section, but any failure to promptly notify you will only affect your obligations to the extent that the failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain the Service Provider’s prior written consent before entering into any settlement.

10. Miscellaneous

10.1    General. The Service Provider and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without the Service Provider’s prior written consent. Failure by the Service Provider to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit its right to enforce such provision at a later time. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.

10.2    Links.  The Services may contain links to third party websites or services.  The Service Provider has no control over the website content, practices or policies of such third parties. The Service Provider makes no warranties and accepts no liability for such third parties.

10.3    Entire Agreement. This Agreement is the entire agreement between you and the Service Provider regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the parties, whether written or verbal, regarding the subject matter of this Agreement.

10.4    Notice. All communications and notices to be made or given pursuant to this Agreement must be in English. The Service Provider may provide any notice to you under this Agreement by posting a notice on the site for the applicable Service or sending a message to the email address associated with your Account. You will be deemed to have received any email sent to the email address then associated with your Account when the Service Provider sends the email, whether or not you actually receive the email. To give notice under this Agreement, you must email the Service Provider at admin@alwaysnft.cloud.

10.5    Choice of Law; Consent to Jurisdiction. The laws of Victoria, Australia govern this Agreement and any dispute of any sort that might arise between the parties without reference to any applicable conflict of laws rules. You consent to exclusive jurisdiction and venue of Victorian courts. The Service Provider may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our, our affiliates, or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

10.6    Force Majeure. The Service Provider is not liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labour disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

10.7    Amendments. The Service Provider may amend this Agreement at any time by posting a revised version on the Website.  The amended agreement become effective upon posting on the Website.  By continuing to use the Services after the effective date of any amendment to this Agreement, you agree to be bound by the amended agreement. Please check the Website regularly. The Service Provider last amended this Agreement on the date listed at the beginning of this Agreement.

Contacting Us

If there are any questions regarding this Agreement, you may contact us using the information below.

 

AlwaysNFT Pty Ltd

 

61 Kingsville Street

Kingsville, VIC 3012 

Australia

 

admin@alwaysnft.cloud


Last Edited on 1 April 2022 by Jenny Kiley.