Last updated: March 8, 2024
(Tweed Purchase and Resale of Partner NFTs)
Original Offeror Agreement
This Tweed original offeror partner agreement (the “Agreement”) is entered into between Tweed Payments Inc., a Delaware company having an address at 300 Delaware Ave. Suite 210 #392 Wilmington, DE 19801 (“Tweed”) the business accepting this Agreement (“Partner”) and is effective as of the date of its acceptance by Partner (the “Effective Date”). Capitalized terms used in this Agreement are defined in the glossary at the end of this Agreement.
This Agreement applies to Partner if it opts in to having Tweed provide just-in-time purchase of NFTs and In-Platform Tokens, which can also be referred to as In-Game Token or In-Game Currency, from Partner for subsequent sale to persons or entities identified as potential buyers by Partner (each, an “End User”) (collectively, the “Tweed NFT Service” or “Services”). This Agreement includes the terms set out below and any Application completed by Partner. Partner also agrees to the other applicable terms of use set out on the Tweed Site at https://www.paytweed.com.
Tweed Account
Tweed may offer Partner a unique and private Account accessible through the Tweed NFT Service. The Account shall be a record of Transactions and related Fees. Tweed shall provide Partner with access codes for the Account. Partner shall not disclose such codes or permit any third party to use them. Partner has exclusive responsibility for the use of Partner Account. Tweed will invite Partner to enter certain preferences and specifications within the Account, the Integration, the cover page, application page or electronic acceptance page accepted by Partner or submitted to Tweed that will apply to this Agreement; Partner assumes exclusive responsibility for such selections even if they contain errors by Partner or result in losses to Partner. Any additional terms and conditions posted to the Account or specific services preferences selected by Partner are incorporated herein by reference. Except as required to deliver the Services or as otherwise required by law, Tweed shall not grant any third party access to Partner Account.
Partner shall notify Tweed by via contact information provided in the Account or the Site immediately of any loss or disclosure, whether voluntary or otherwise, of any Account password or access code to a third party.
Partner shall provide, at Partner’s own expense, all necessary hardware, applications and internet connectivity necessary to access the Tweed NFT Services. Partner acknowledges that the internet can be unpredictable in performance, unsecure and may, from time to time, impede access to the Tweed NFT Services or performance hereunder. Partner agrees that Tweed is not responsible for any internet outages, unsecure WIFI or other connections or any other interference with Partner’s use of or access to the Tweed NFT Services or security breaches arising from any Partner Device and Partner waives any and all claims against Tweed in connection therewith.
As and when available, and when requested by Partner, the Tweed NFT Services may be integrated with those of Third Party Servicers. Where the Tweed NFT Services are integrated with those of a Third Party Servicer, Partner thereby instructs Tweed to send, receive, process and store Partner Data with the Third Party Servicer.
NFTs for sale by Partner
Partner represents to Tweed that: (i) it has created each NFTs and that it is the rightful owner thereof; (ii) none of the NFTs contain any third party Intellectual Property Rights; (iii) none of the NFTs infringe on any third party Intellectual Property Rights or are otherwise prohibited or restricted for sale by Partner in the United States or those jurisdictions where Partner or End User are located; and (iv) it is and shall remain throughout the course of performing hereunder in compliant with all applicable laws in the United States and those of the jurisdiction where Partner and each End User are located or domiciled, such as they may be from time to time.
Partner represents that NFTs: (i) are being sold and promoted as collectibles or objects used for entertainment purposes: (ii) are not securities within the meaning of the Securities Act nor are they being sold or promoted as a means to enrich the holders thereof as part of any ‘get-rich-quick’ scheme or ‘pump-and-dump’ scam; and (iii) do not come with terms of use promising revenue, dividends or other financial benefits.
In-Platform Tokens for sale by Partner
Partner represents to Tweed that: (i) it has created each In-Platform Token and that it is the rightful owner thereof; (ii) none of the In-Platform Token infringe on any third party Intellectual Property Rights or are otherwise prohibited or restricted for sale by Partner in the United States or those jurisdictions where Partner or End Users are located; (iii) Partner is not using the Services to resell them or assist any third party in procuring them; the Services are being used exclusively for the sale of Partner In-Platform Tokens; and (iv) it is and shall remain throughout the course of performing hereunder in compliant with all applicable laws in the United States and those of the jurisdiction where Partner and each End User are located or domiciled, such as they may be from time to time.
Partner represents that In-Platform Token: (i) have no value outside of its own platform, game or metaverse (ii) are being sold and promoted for use solely within its own platform, game or metaverese, to redeem for other items within such platform, game or metaverse; (iii) are not securities within the meaning of the Securities Act nor are they being sold or promoted as a means to enrich the holders thereof as part of any ‘get-rich-quick’ scheme or ‘pump-and-dump’ scam or otherwise; (iv) are not redeemable for cash; and (v) do not come with any terms of use promising revenue, dividends or other financial benefits.
Partner Offer of NFTs and In-Platform Tokens
Partner hereby offers to sell to Tweed all NFTs and/or In-Platform Tokens indicated as for sale and for the prices indicated in the Account or Integration or by such other means as Tweed may accept in writing.
As to a specific Transaction for an individual NFT or In-Platform Token, Partner shall notify Tweed through the Account or Integration of the interest of an End User in purchasing an NFT or In-Platform Token (“End User Interest”). On receipt of the End User Interest, Tweed shall offer to sell the specified NFT or In-Platform Token to the End User on terms acceptable to both parties hereto (the “End User Sale Price”).
Partner shall ensure that each instance of End User Interest shall be a good faith interest on the part of an bona fide arm’s length End User that is not an affiliate of Partner and that has not been hired by Partner to purchase the NFT or In-Platform Tokens or manipulate the potential End User Sale Price or any subsequent sale price.
Tweed Offer of NFTs and In-Platform Tokens
Following receipt of the End User Interest, Tweed shall offer to sell the NFT or In-Platform Tokens to End User at the End User Sale Price and subject to terms between Tweed and the End User (the “Tweed End User Terms”). Partner authorizes Tweed to make Partner a party to the Tweed End User Terms and shall comply with the provisions thereof applicable to Partner.
Acceptance
If an End User accepts the offer of a Transaction by Tweed to sell an NFT or In-Platform Tokens to them for the End User Sale Price, then, subject to the terms of this Agreement: (i) title in the NFT or In-Platform Token shall pass from Partner to Tweed; and then (ii) Tweed shall proceed to sell the NFT or In-Platform or Token to the End User for the End User Sale Price and subject to the Tweed End User Terms.
Payment by End User to Tweed
Prior to delivery of the NFT or In-Platform Token to the End User, End User must make payment in full for their Transaction to the entire satisfaction of Tweed and Partner. Such payment to Tweed may be in the form of fiat Card payment or such other form of payment as is acceptable to both parties hereto and supported by the Integration. Partner guarantees that End User shall complete their payment on each Transaction and shall indemnify and hold Tweed harmless from and against any losses, chargebacks or other liabilities associated with End User payments. Partner shall ensure that all End User-facing disclosure contains all necessary consents with respect to payments made by End Users.
Delivery
8.1. Following payment by the End User to Tweed, in such form as is acceptable to both parties, the NFT or In-Platform Token that is subject to the Transaction (in which Tweed already has title as per the foregoing) shall be delivered to the End User, either by Partner or by Tweed, as may be set out in the Account or Integration.
8.2. As and when instructed by Partner through the Account, Integration, or by such other means as is acceptable to both parties, when a Transaction has been processed and not charged back or reversed, Tweed shall either, as agreed between the parties: (i) sign a smart contract acceptable to both parties on an Approved Network which signature, Partner represents will result in delivery of an NFT or In-Platform Token purchased to an End User Wallet (“NFT Delivery Smart Contract”); or (ii) provide such other confirmation of the Transaction as is acceptable to both parties. The party that receives End User instructions as to the End User Wallet shall be responsible for entering such information into the Account or Integration and shall be responsible of the wallet to which the NFT or In-Platform Token is sent is sent to a wallet other than the End User Wallet supplied to such party. Where End User makes an error in supplying their End User Wallet address, each party shall ensure that under their respective terms with the End User, the End User is liable for such error and neither Tweed not Partner shall be liable. In any case, where an End User makes a claim in respect of their own error, with respect to an End User Wallet or otherwise, Partner shall be liable to indemnify and hold Tweed harmless in respect of such claim.
8.3. Tweed has no duty to verify the validity or effectiveness of any NFT Delivery Smart Contract nor whether any given End User Wallet in use therein or otherwise is actually the wallet of the End User that is party to the Transaction. Absent fraud by Tweed, Partner retains the sole and exclusive liability with respect the delivery of each NFT or In-Platform Token to the End User regardless of whether the NFT or In-Platform Token passes through a Tweed wallet or not.
8.4. Tweed reserves the right to refrain from signing the NFT Delivery Smart Contract, rejecting a Transaction or reversing a Transaction where Tweed believes that completing either would expose Tweed to excessive security, financial or reputational risk and Tweed shall have no liability to Partner for such decisions.
Payment by Tweed to Partner
Tweed shall pay Partner for the NFTs or In-Platform Tokens that are subject to Transactions monthly in arrears or such other periodicity as may be set out in the Account or Integration or other agreement between the parties hereto. Tweed may set off from any payment to Partner any amount owing by Partner to Tweed including but not limited to failure by an End User to pay for an NFT or In-Platform Token together with related fees such as, for example, chargeback fees and other costs or losses. All settlements to Partner are provisional and subject to subsequent adjustment as a function of Tweed liabilities in respect thereof under its Transactions with End Users.
Limitations and KYC
The following Persons are prohibited from using the Tweed NFT Services: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who are less than 18 years of age or who are between the ages of 13 and 18 and have not provided Tweed with parental consent; and (iii) Persons, or their Affiliates who have procured services from Tweed and have been terminated for cause by Tweed. Partner must be a business, charitable organization or not-for-profit organization to use the Tweed NFT Services. Tweed reserves the right to decline to provide Tweed NFT Services or terminate Tweed NFT Services to one or another type of business; Tweed shall notify Partner of prohibited business types through the Site, the Account or other means. In any case, any business that is illegal or operates in support of illegal activity is prohibited from using the Tweed NFT Services.
Partner shall verify the identity of all End Users for the purposes of detection of fraud, money laundering, terrorist financing or other financial crime and shall keep a record of all such information. Tweed reserves the right to require Partner to share this information with it and to provide additional information or documents it believes is reasonably necessary, including at the request of any competent authority or in order for Tweed to comply with its obligations under Applicable Law, regulation or policy, including laws related to anti-money laundering and financing of terrorism. Partner’s lack of compliance with this section is grounds for immediate termination of the Agreement.
Tweed reserves the right but does not have the obligation to verify End Users for the purposes of detection of fraud, money laundering, terrorist financing or other financial crime. Any failure of such verifications shall not be grounds for a claim by Partner versus Tweed.
Crypto and NFT Risk
Partner acknowledges and agrees that:
11.1. The prices of digital assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the NFTs or In-Platform Tokens, which may also be subject to significant price volatility. Tweed does not guarantee that any NFTs will not lose value. Tweed is not liable for any fluctuation in Crypto or NFT value over the course of a Transaction or otherwise.
11.2. Partner is solely responsible for determining what, if any, taxes apply to Transactions involving Partner NFTs or In-Platform Tokens.
11.3. NFTs exist and can be transferred only by virtue of the ownership record maintained on the blockchain supporting such NFTs.
11.4. There are risks associated with using Crypto and NFTs, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within the Account.
11.5. The legal and regulatory regime governing Crypto and NFTs is uncertain, and new regulations or policies may materially adversely affect the development of the Tweed NFT Service and the utility of NFTs.
11.6. There are risks associated with purchasing NFTs, including but not limited to, the risk of purchasing counterfeit assets, mislabelled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable. Tweed has no responsibility for the NFTs or In-Platform Tokens purchased or stored through the Service. Tweed does not investigate and cannot guarantee or warrant the authenticity, originality, uniqueness, marketability, legality or value of any NFT.
Taxes
Except as required by applicable Partner shall not add any tax or surcharge to Transactions, unless applicable law expressly allows or requires the Partner to impose such tax or surcharge. If any tax or surcharge amount is required, Partner shall determine the amount thereof and instruct Tweed to apply it to the Transaction and assumes exclusive responsibility for the correct collection and remittance thereof, whether under Partner sales to Tweed or in respect of Tweed sales to End Users.
Security
13.1. Each party shall be responsible for the security of their respective Systems and each party shall make reasonable efforts to prevent unauthorized access to their respective Systems and shall assume exclusive liability for any data breaches and related damages or other losses occurring on account of a data breach on their respective System or corruption of data occurring therein. For example, but without limitation, if an End User has made payment on a Transaction and Partner is unable to deliver the NFT or In-Platform Token on account of a failure in Partner Systems or for any other reason, Partner shall be liable for the cost of reimbursing the amount paid by the End User to Tweed and any and all claims arising in respect thereof.
13.2. To the extent that either party comes into possession or control of Cardholder data in the course of performing hereunder, the party shall ensure that such data is held in compliance with applicable Security Standards.
Data Consents
Each party shall have privity of contract with End Users. Each party is responsible for obtaining such consents from End Users as relates to their KYC information, payment information, Transactions and other matters as are necessary to perform under their respective agreements with End Users. Partner shall be responsible for obtaining consents from End Users to collect, store, process and disclosure End User data to, from and among Tweed, its payment processors and other third parties assisting in completing Transactions.
Refunds
Partner is required to maintain a refund policy if Partner limits refund or exchange terms or other specific conditions for Transactions. Partner’s policy must be clearly provided to Tweed and the End User prior to the sale and as part of the sale confirmation process. Proper disclosure would include wording that is prominently displayed and states “NO REFUND, EXCHANGE ONLY” or something similar and includes any applicable terms. Tweed shall extent the same refund / exchange policy of Partner to End Users under its own terms facing End Users. Qualifying Partner’s refund or exchange terms does not completely eliminate Partner’s liability for a refund because consumer protection laws and Payment Network Rules frequently allow the End User to still rightfully dispute these items. If, under Partner’s refund policy, Partner allows a refund, Partner shall implement such refund within three (3) days of approving the End User’s request for such refund or such shorter time as applicable law may require. The amount of a refund cannot exceed the amount shown as the total on the original Transaction Data except by the exact amount required to reimburse the End User for shipping charges that the End User paid to return merchandise. Partner shall not accept any payment from a End User as consideration for issuing a refund.
Tweed Regulatory Status
Under this Agreement, Tweed is not acting as a bank, money services business, payment processor, broker or financer. Tweed is a reseller of NFTs and In-Platform Tokens pursuant to Transactions. Funds received by Tweed for Transactions are not insured by Tweed or any third party such as the Federal Deposit Insurance Corporation (“FDIC”). In the event that Transactions proceed, payment is made to Tweed and Tweed becomes insolvent before Tweed settles its payment to Partner for NFTs or In-Platform Tokens, Partner’s shall be an unsecured creditor versus Tweed for amounts owing by Tweed to Partner.
Tweed may provide payment processing services for Partner under a separate agreement but not under this Agreement.
If, for whatever reason, Tweed takes possession of fiat or Crypto that constitutes a purchase price payable to Partner for a sale of an NFT or In-Platform Token by Partner to an End User – which is not intended to happen in the ordinary course of Transactions - then Tweed does so as agent of Partner and receipt of such fiat or Crypto by Tweed shall be deemed settlement thereof to Partner.
Partner Regulatory Status
Partner represents that it has such licenses and registrations as are required under Applicable Law to carry out Transactions. Tweed shall have no liability with respect to any Transaction and Partner shall hold Tweed harmless from and against any claim by an End User or other third party arising from any Transaction.
Term and Termination
The term of this Agreement shall begin as of when it is accepted by Partner and shall end when terminated in accordance with the terms hereof. Partner can terminate this Agreement on not less than ninety (90) days prior written notice to Tweed. Any party may terminate this Agreement in the event that another party is in material breach hereof and such party has not cured the breach within thirty (30) days following notice thereof. Tweed may also terminate this Agreement at any time for any reason or for no reason on notice to Partner. A breach by Partner under any other agreement with Tweed shall be deemed a breach hereof.
Termination does not affect any party’s respective rights and obligations under this Agreement as to Transaction Data submitted before termination.
Provisions that by their nature should survive termination of this Agreement shall survive termination of this Agreement including but not limited to the following: 10 Limitations and KYC, 12 Taxes, 14 Data Consents, 18 Term and Termination, 19 Reserve Account, 20 Partner Risk Management, 21 Confidential Information, 22 No Warranties, 23 Limitation of Liability, 24 Indemnification, 25 FCRA Consent, 26 Fees, 27 ACH Consent, 28 General, 29 Glossary and other disclosure provided in the Account.
Reserve Account
At the discretion of Tweed it shall create a reserve account (the “Reserve”) in order to protect Tweed from actual or potential liabilities hereunder. The Reserve will be in an amount determined by Tweed in its sole and absolute discretion to cover anticipated chargebacks, returns, undelivered NFTs or In-Platform Tokens and/or unfulfilled Transactions or credit risk based on Partner’s processing history. Where Tweed wishes for a Reserve to be established but in different amounts than Partner, the higher amount shall govern. The Reserve may be amended by Tweed in its sole discretion. Where the Reserve is not adequately funded, Partner shall pay all amounts requested by Tweed for the Reserve within three (3) business day of a request for such amounts, or at their discretion may build the Reserve by off-sets from settlements to Partner hereunder or by debiting the Deposit Account, or any other account of the Partner, by means of the ACH Consent. The Reserve will be held after the last Transaction is processed under this Agreement for such time as Tweed, in its discretion, deems reasonable.
In order to secure the obligations of Partner to Tweed under this Agreement, Partner grants Tweed a security interest in and lien on any and all funds held in any Reserve and unsold NFTs or In-Platform Tokens, and also authorizes Tweed to make any withdrawals or debits from the Reserve, without prior notice to Partner, to collect amounts that Partner owes Tweed under this Agreement, including without limitation for any reversals of deposits or transfers. Partner will execute any additional documentation required for Tweed to perfect their security interests in any funds in the Reserve and NFTs or In-Platform Tokens. This security interests survive for as long as funds are in the Reserve; however, it does not apply to any funds for which the grant of a security interest would be prohibited by law. Partner irrevocably assigns to Tweed all rights and legal interests to any interest or other earnings that accrue or are attributable to the Reserve.
Partner Risk Management
Partner shall supply any information and documentation requested by Tweed during the application phase and at any time thereafter during the term of this Agreement including, without limitation, information and documentation regarding Partner, its beneficial owners, Partner’s business and financial information. Further, Tweed reserves the right to withhold performance hereunder until requested information has been provided, reviewed, verified and accepted by Tweed.
On notice to Partner but during Partner’s normal business hours, Tweed’s duly authorized representatives may visit Partner’s business premises and may examine Partner’s books and records that pertain to Partner’s Transactions or Partner’s compliance with this Agreement.
Partner will provide Tweed with prompt written notice of any changes to information previously supplied to Tweed, any changes in its business or NFTs or In-Platform Tokens that could negatively impact Tweed or End Users and also: (i) any adverse change in Partner’s financial condition; (ii) any planned or anticipated liquidation or substantial change in the basic nature of Partner’s business; or (iii) any transfer or sale of any substantial part (25% or more in value) of Partner’s total assets.
Confidential Information
Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement. Partner Data shall, without limitation, be Partner Confidential Information. Tweed Data shall, without limitation, be Tweed Confidential Information.
NO WARRANTIES BY TWEED
THE TWEED NFT SERVICE AND ALL MATERIAL OR CONTENT AVAILABLE THROUGH IT ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TWEED HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TWEED DOES NOT WARRANT THAT THE TWEED NFT SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY END USER FROM THE TWEED NFT SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE TWEED NFT SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF TWEED OR THE TWEED NFT SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. PARTNER ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM PARTNER USE OF OR ACCESS TO THE TWEED NFT SERVICE, PARTNER’S DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE TWEED NFT SERVICE. PARTNER UNDERSTANDS AND AGREES THAT PARTNER USES THE TWEED NFT SERVICE, AND USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS MATERIALS OR CONTENT THROUGH THE TWEED NFT SERVICE AND ANY ASSOCIATED SITES OR TWEED NFT SERVICE, AT PARTNER’S OWN DISCRETION AND RISK, AND THAT PARTNER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO PARTNER DEVICES OR OTHER PROPERTY OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE TWEED NFT SERVICE OR THE DOWNLOAD OR USE OF MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND PARTNER MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
LIMITATION OF LIABILITY
IN NO EVENT WILL TWEED BE LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT EXCEEDING FEES PAID IN RESPECT OF THE TWEED NFT SERVICE DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL TWEED’S SUPPLIERS OR THIRD PARTY SERVICERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
IN NO EVENT SHALL TWEED BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFITS, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL TWEED BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR TWEED NFT SERVICE. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
TO THE EXTENT THAT TWEED MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF TWEED’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
Tweed shall not be liable for any claims, losses or liabilities related to any NFT.
Indemnification
Partner shall defend, indemnify and hold harmless Tweed and its owners, directors, officers, employees, agents, assigns and successors-in-interest (“Indemnified Parties”) from any and all liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys’ fees and expenses) (collectively “Liability”) arising from or in relation to Transactions, including any and all costs associated with the legal defence related to such Liability.
Additionally, Partner shall defend, indemnify and hold harmless the Indemnified Parties from and against any and all Liability arising out of or resulting from: (i) any breach of any warranty, covenant or agreement by Partner under this Agreement; (ii) Partner’s performance under this Agreement including, without limitation, performance, non-performance, or defect in performance, any statement, misstatement, representation or misrepresentation made by Partner; (iii) the negligent or wilful acts or omissions of Partner or Partner’s agents and/or employees; (iv) any statements, claims, representations or warranties made by Partner or Partner’s agents and/or employees, relating to Partner’s NFTs or In-Platform Tokens, goods or services or any other matter; (v) any third party indemnifications Tweed is obligated to make as a result of Partner’s actions including, without limitation, any indemnification of any Payment Network or Card issuer; (vi) acts or omissions of Third Party Servicers; and (vii) any dispute between Partner and an End User, Third Party Servicer, or other third party.
Fair Credit Reporting Act Consumer Disclosure And General Authorization
In connection with Partner procuring the Tweed NFT Service, Partner understands that a consumer report as defined in the Federal Fair Credit Reporting Act as amended (“FCRA”), 15 U.S.C. 1681 and following, may be obtained by Tweed from a consumer reporting agency (“CRA”). Partner understands that this report may include information with respect to public record information, criminal records, motor vehicle operation history, education records, names and dates of previous employers, reason for termination of employment and work experience, and/or creditworthiness, capacity and standing, character, general reputation, personal characteristics, or mode of living. Such information may be used to evaluate whether Partner is an appropriate candidate for the Tweed NFT Service and this determination may be adverse to Partner. The information obtained will not be provided to any parties other than to designated authorized representatives of Tweed. Partner further understands that the CRA may not give out information about Partner to Tweed without Partner’s written consent. Partner hereby authorizes Tweed now, or at any time while it is party to an agreement with Tweed or otherwise engaged with Tweed, to obtain a consumer report on Partner. This authorization does not include the release of Partner’s medical information. A copy, fax or scan of this consent shall be considered as effective and valid as the original. Partner understands that, in the event any adverse action is taken against Partner based in whole or in part on the consumer report, Partner shall be provided with the name of the CRA and a copy of the report as well as a description of Partner’s rights under the FCRA.
On request, California, Minnesota, and Oklahoma residents can obtain a copy of any consumer credit report requested by Tweed.
On request, New York residents can be informed if a consumer credit report has been requested on Partner by Tweed as well as the name of the agency providing the report.
Partner has read and understands the above and authorizes Tweed to perform the above investigations.
Fees
Partner shall pay the fees for the Tweed NFT Service agreed to by Partner in the Account, application, Integration or other disclosure provided to Partner. Once such fee disclosure is accepted by Partner, it shall constitute part of this Agreement, together with any amendments thereto. Tweed reserves the right to amend the fees upon notice to Partner. Notwithstanding the foregoing, no rights or obligations with respect to the Tweed NFT Service shall arise until such time as the fees have been agreed to by Partner and Tweed. Fees shall be paid by means of off-sets from settlements to Partner hereunder. If settlements due to Partner are not sufficient, fees shall be paid by means of the ACH consent or such other means as Tweed may prescribe. Fees are payable no later than the end of the month during which they accrued. Partner shall pay interest at the rate of one and one-half percent per month on any fees not paid when due, but in no event more than the highest rate of interest legally allowable.
ACH Consent
Tweed shall determine the method of settlement of Settlement Funds. Settlement of Settlement Funds and other credits and debits hereunder to/from the Deposit Account may be by means of Automated Clearing House (“ACH”) and/or wire transfer or any other such means as determined by Tweed in its sole discretion. In accordance with this desire, Partner authorizes Tweed and/or their affiliates to initiate debit and credit entries to the Deposit Account (the details of which are set out in the Application) for settlement of the Settlement Funds, for payment of fees and other liabilities under this Agreement, and as otherwise instructed by Partner. Partner agrees to maintain sufficient funds in Deposit Account to cover debit transactions. Partner states that it has authority to agree to such transactions and that the Deposit Account indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until Tweed receives written notice from Partner revoking it. Partner also certifies that the appropriate authorizations are in place to allow Partner to authorize this method of settlement. All changes to the identification of the Deposit Account under this authorization must be made in writing in accordance with the Agreement. Partner understands that, if the information supplied as to the ABA Routing Number and Deposit Account Number of the Deposit Account is incorrect, and funds are incorrectly deposited, Tweed will attempt to assist Partner in the recovery of such funds but Tweed has no liability as to restitution of the same. Tweed’s assistance in recovering the funds, where available, will be billed to Partner at Tweed’s current hourly rate for such work. Partner acknowledges that the origination of ACH transactions to the Deposit Account must comply with the provisions of U.S. law. This consent shall be referred to in this Agreement as the “ACH Consent”.
General
28.1. Assignment
Without notice to Partner or Partner’s consent, Tweed may assign this Agreement and its rights and obligations hereunder. Partner cannot assign or transfer its rights or delegate its responsibilities under this Agreement without Tweed’s prior written consent, which consent may be withheld in Tweed’s sole and absolute discretion. Any transfer of voting control of Partner or Partner’s parent shall be considered an assignment or transfer of this Agreement. Any assignment of this Agreement other than as provided herein shall be null and void.
28.2. Severability
Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, such determination will not affect the validity or enforceability of any other provision of this Agreement.
28.3. Waivers
No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced. Tweed’s waiver of Partner’s breach of any term or condition of this Agreement shall not be deemed a waiver of any subsequent breach of the same or another term or condition.
28.4. Entire Agreement
This Agreement and any Application, together with disclosures set out in the Account, represents the entire understanding between Partner on the one hand and Tweed on the other with respect to the matters contained herein and supersedes any prior agreements between the parties. Partner agrees that in entering into this Agreement it has not relied on any statement of Tweed or its representatives.
28.5. Notices
Except as otherwise provided in this Agreement, all notices and other communications required or permitted hereunder (other than those involving normal operational matters relating to the processing of Transactions) shall be in writing. If to Partner, notices may be delivered by courier or sent by U.S. mail postage prepaid to Partner’s address appearing in the Application or by any electronic means, including but not limited to the e-mail address Partner has provided on the Application. If to Tweed, notices shall be delivered by courier or sent by U.S. mail postage prepaid to:
Tweed Payments, Inc.
300 Delaware Ave. Suite 210 #392 Wilmington, DE 19801
Attn: Legal Department
Either party may advise the other of a change in its address / email address by providing written notice as set forth herein. Notices shall be deemed to have been given (i) if sent by mail or courier, upon the earlier of five (5) days after mailing or when actually received or, in the case of courier, when delivered, (ii) if sent by fax, when the confirmation copy is generated, and (iii) if sent by email, when sent provided no “undeliverable” message was received. Notices sent to Partner’s last known address (including e-mail address), as indicated in our records, shall constitute effective notice to Partner under this Agreement.
28.6. Governing Law; Waiver of Jury Trial; Arbitration
This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without reference to conflict of law provisions. Any action, proceeding, arbitration hearing or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in the county of Delaware where Tweed is located. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE RESOLVED BY BINDING ARBITRATION AND THAT (i) PARTNER IS GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST TWEED OR RELATED THIRD PARTIES; (ii) PARTNER IS GIVING UP ITS RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST TWEED OR RELATED THIRD PARTIES; (iii) PARTNER IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A CLASS OF CLAIMANT, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST TWEED, AND/OR RELATED THIRD PARTIES. Any claim, dispute, or controversy (“Claim”) by either Partner, Tweed against the other, or against the officers, directors, employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents, successors, or assigns of the other, arising from or relating in any way to this Agreement or to the relationship formed between the parties as a result of this Agreement, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”) in the county in Delaware where Tweed is located. All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, Partner’s, Tweed’s negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis only, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. Partner and Tweed will agree on another arbitration forum if the AAA ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Partner and Tweed. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section shall be non-severable from the remainder of this Section. If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-778-7879. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any Claims, defences, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either party to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, PARTNER MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.
26.7. Compliance with Laws
In performing its obligations under this Agreement, each party agrees to comply with all laws and regulations applicable to it. Partner further agrees to cooperate and provide information requested by Tweed to facilitate their compliance with any applicable law including without limitation the rules and regulations promulgated by the Office of Foreign Assets Control of the U.S. Department of the Treasury. Without limiting the foregoing, Partner acknowledges and agrees that “restricted transactions” as defined in the Unlawful Internet Gambling Enforcement Act of 2006 and Regulations GG, as they may be amended from time to time (“Restricted Transactions”) issued thereunder are prohibited from being entered into or processed under this Agreement or through the Tweed NFT Service. Partner represents and warrants that it will not submit such Restricted Transactions for processing. Partner further acknowledges and agrees that it will not use the Tweed NFT Service for Transactions involving any person or entity listed on the U.S. Department of Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked Persons List (available at www.treas.gov/ofac) or the U.S. Department of State’s Terrorist Exclusion List (available at www.state.gov) or the processing and acceptance of Transactions in certain jurisdictions pursuant to 31 CFR Part 500 et seq. and other laws enforced by the Office of Foreign Assets Control or in connection with illegal activity of any kind.
In the event a suspected restricted Transaction is identified, such Transaction may be blocked or otherwise prevented or prohibited. In such event, the relationship created by this Agreement may be terminated and other remedies available under this Agreement or otherwise may be sought.
26.8. Force Majeure
Tweed will not be liable for delays in processing or other non-performance caused by events such as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, non-performance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this provision will affect or excuse Partner’s liabilities and obligations for Chargebacks, refunds, or unfulfilled products and services.
26.9. Amendment
This Agreement may be amended at any time by Tweed on email notice to Partner, notice through the Account or by updating these terms posted to the Site. This Agreement shall be amended as per the terms of such notice if Partner does not terminate this Agreement within thirty (30) days of such notice. Notwithstanding the foregoing, in the event the terms of this Agreement must be amended pursuant to a change required by the Payment Network Rules, Applicable Law or any third party with jurisdiction over the matters described herein, such amendment will be effective immediately. Your electronic signature or continued submission of Transactions following such notice will be deemed to be your acceptance of such amendment.
26.10. Third Party Beneficiaries
Tweed’s affiliates and any persons used by either of them in providing the Tweed NFT Service as well as End Users are third party beneficiaries of this Agreement and each of them may enforce its provisions as if it was a party hereto. Except as expressly provided in this Agreement, the parties do not intend for any persons to be third party beneficiaries of this Agreement and nothing in this Agreement is intended to confer upon any person any rights or remedies. Tweed reserves the right to perform some or all of its obligations under this Agreement through one or more third parties.
26.11. Relationship Between the Parties
The parties shall perform their duties under this Agreement as independent contractors. Nothing contained herein will be deemed to create any other relationship between the parties. It is agreed that no party will represent itself to be the joint venturer, co-owner, partner, employer or employee of another party. The parties agree that, except as specifically provided in this Agreement, no party grants any other party the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of another party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of another party, or to transfer, release or waive any right, title or interest of such another party.
Glossary
In this Agreement, the following terms have the definitions indicated below:
Account means the unique account through which Partner sends and receives information to and from Tweed under the Software License Agreement.
Acquirer means the acquiring bank or processor used by Tweed to acquire Cardholder funds.
Application means a esign, electronic or other application form, order form or consent to procure Tweed NFT Services completed or accepted by Partner in relation to this Agreement.
Approved Network means the blockchain or network supporting a NFTs and Transactions that is approved by both parties.
Card means any account or evidence of an account issued to a Cardholder under license from a Payment Network that is acceptable for payment by Tweed.
Cardholder means the person whose name is embossed upon the face of the Card and who purports to be the person in whose name the Card is issued.
Crypto or Virtual Currency means a virtual currency based on a distributed blockchain ledger of an Approved Network over which no single issuer, holder or group of either has control.
Deposit Account means a deposit account of the Partner to and from which Settlement Funds and fees and other Partner liabilities hereunder shall be deposited or withdrawn, as applicable.
End User or Customer is the person or entity who wishes to enter into a Transaction for the purchase of an NFT.
End User Wallet means a NFT Wallet owned by an End User to which End User wishes to receive delivery of an NFT under a Transaction.
Fiat or fiat means currency issued by a sovereign government, such as USD.
In-Platform Token means digital tokens: (i) created, designed and offered by Partner for use only within Partner’s platform, game, or metaverse; (ii) that have no value outside of the platform, game or metaverse; (iii) are meant to be used solely within Partner’s platforms, game, or metaverse; and (iv) are not be securities or other regulated financial assets within the United States or within any region in which Partner offers them through Tweed’s NFT Service.
Integration means an electronic integration between the Partner Systems and Tweed Systems pursuant to which information is exchanged in a secure manner, in a form that is acceptable to both parties.
Intellectual Property Rights means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, including all registrations and related applications and all goodwill associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents and patent applications; (iv) all know-how, trade secrets, confidential information, and other proprietary rights and information; and (v) all other rights covering intangible property recognized in any jurisdiction.
NFT means a one-of-a-kind, non-fungible, cryptographic token representing a unique digital asset for which there is no copy or substitute that Partner wishes to sell to Tweed pursuant to the terms of this Agreement. For the purposes of this Agreement, a digital asset is not an NFT if it can be substituted for another NFT or if it is or is intended to be used as a medium of exchange or convertible virtual currency.
NFT Wallet means a Digital Asset wallet capable of holding an NFT or other Digital Assets, or a third party service, device, code or protocol used to store NFTs or initiate NFT Transactions via the Account or otherwise.
OFAC means the U.S. Department of the Treasury Office of Foreign Asset Control.
Partner Data means data concerning Partner operations and its relationships with End Users.
Partner Device means a computer, tablet or other device used by Partner to access the Tweed NFT Services.
Partner Systems means those computing or server systems owned or operated by Partner and used in the course of performing under this Agreement or otherwise.
Payment Network is any payment method provider whose payment method is accepted by Tweed for processing, including, but not limited to, Visa, U.S.A., Inc., MasterCard International, Inc., American Express, Discover Financial Services, LLC and other credit and debit card providers, debit network providers, gift card and other stored value and loyalty program providers. Payment Network also includes the Payment Card Industry Security Standards Council.
Payment Network Rules are the bylaws, rules, and regulations and the American Express Partner Operating Guide, as they each exist from time to time, of the Payment Networks. Visa and Mastercard Rules can be viewed here: http://usa.visa.com/merchants/operations/op_regulations.html and http://www.mastercard.com/us/merchant/pdf/BM-Entire_Manual_public.pdf
Person is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.
Sanctioned Jurisdiction means any jurisdiction that is subject to OFAC or other U.S. sanctions including but not limited to Afghanistan, Balkans, Belarus, Burundi, Central African Republic, Crimea Ukraine, Cuba, Democratic Republic of Congo, Guinea-Bissau, Iran, Iraq, Lebanon, Libya, Mali, Myanmar, Nicaragua, North Korea, Somalia, Sudan and Darfur, South Sudan, Syria, Syrian Arab Republic, Ukraine, Venezuela, Yemen and Zimbabwe.
SDN means a specially designated national or otherwise sanctioned individual or entity, as determined by OFAC or another regulatory agency.
Security Standards are all rules, regulations, standards or guidelines adopted or required by the Payment Networks or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Cardholder data, including but not limited to the Payment Card Industry Data Security Standards (PCI DSS), Visa’s Cardholder Information Security Program (CISP), Discover’s Information Security & Compliance Program (DISC), American Express’s Data Security Operating Policy, MasterCard’s Site Data Protection Program (SDP), Visa’s Payment Application Best Practices (PABP), the Payment Card Industry’s Payment Application Data Security Standard (PA DSS), MasterCard’s POS Terminal Security program and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time. Detailed information about PCI DSS, can be found at the PCI DSS Counsel’s website: www.pcisecuritystandards.org. Detailed information about Visa’s CISP program can be found at Visa’s CISP website: www.visa.com/cisp. Detailed information about Mastercard’s SDP program can be found at the Mastercard SDP website: www.mastercard.com/sdp. Detailed information about DISC can be found at Discover DISC website: http://www.discovernetwork.com/fraudsecurity/disc.html. Detailed information can be found at American Express’ website: www.americanexpress.com/merchantopguide.
Site means www.paytweed.com or such other sites or portals through which the Tweed Services are supplied or accessible.
System means either the Tweed Systems or the Partner Systems.
Third Party Servicer Agreement means an agreement between Partner and a Third Party Servicer pursuant to which the Third Party Servicer delivers their services.
Third Party Servicer means a third party retained by Partner to assist in the supply, marketing or delivery of its products or services or that assists Partner in the collection, storage, use or disclosure of marketing, Transaction Data or other data, which third party has been approved in advance by Tweed.
Third Party Servicer means a third party: (i) whose service are compatible with the Tweed NFT Services, as indicated by Tweed; (ii) that Partner has retained under a Third Party Servicer Agreement; (iii) with whom Partner wishes to share Partner Data; and (iv) through which Partner wishes to deliver instructions to Tweed with respect to the Account.
Transaction Data is the written or electronic record of a Transaction, including but not limited to an authorization code or settlement record, as well as the associated End User information, Cardholder information, and information concerning the commercial transaction between the End User and the Partner that gives rise to the Card Transaction.
Transaction is an actual or attempted transaction whereby, following an offer by a End User to purchase an NFT, Tweed purchases such NFT from Partner and sells it to the End User.
Tweed Data means all data concerning Tweed operations, its relationships with End Users, this Agreement and other information provided by Tweed to Partner hereunder.
Tweed Site or Site means https://www.paytweed.com.
Tweed Systems means the computer or hosting systems owned or operated by Tweed and used in the course of performing under this Agreement.
