Xsolla ZK, Inc.'s Terms of Use

2. Changes.

2.1 To the Offerings. We may change or discontinue any or all of the Offerings or change or remove functionality of any or all of the Offerings from time to time. We will use commercially reasonable efforts to communicate to you any discontinuation of an Offering through the Site or public communication channels. We will also use commercially reasonable efforts to continue supporting the Offering for up to one (1) month after the discontinuation, except if doing so (a) would pose an information security or intellectual property risk, (b) is economically or technically burdensome or (c) would create undue risk of us violating the law.

2.2 To this Agreement. We reserve the right, at our sole discretion, to modify or replace any part of this Agreement or any incorporated Policy at any time. It is your responsibility to check this Agreement periodically for changes, but we will also use commercially reasonable efforts to communicate any material changes to this Agreement through the Site, email (if you have an account) or public channels. You agree that your continued use of or access to the Offerings following the posting of any changes to this Agreement constitutes acceptance of those changes, whether or not you were checking for changes or actually read the changes.

3. Your Responsibilities.

3.1 Use of the Offerings. For any Offerings, whether they require that you set up an account with Xsolla ZK or they do not, and except to the extent caused by our direct breach of this Agreement, (a) you are responsible for all activities that occur with respect to your use of the Offerings, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or other End Users), and (b) we and our affiliates are not responsible for unauthorized access to the Offerings or your account, including any access that occurred as a result of fraud, phishing or other criminal or unlawful activity perpetrated by third parties. You will ensure that your use of the Offerings does not violate any applicable law.

3.2 Your Security and Backup. You are solely responsible for properly configuring and using the Offerings and otherwise taking appropriate action to secure, protect and backup your accounts and/or Your Content in a manner that will provide appropriate security and protection, which might include use of encryption. Your obligations under this Agreement include ensuring any available software updates or upgrades to an Offering you are using are promptly installed or implemented, and recording and securely maintaining any passwords or secret recovery phrases that relate to your use of the Offerings. You acknowledge that certain methods of securing your secret recovery phrase, such as storing it as a digital file anywhere, including on your personal device or on a cloud storage provider, increase the risk that your account or secret recovery phrase will be compromised. You further acknowledge that you will not share with us nor any third party any password or secret recovery phrase that relates to your use of the Offerings, and that we will not be held responsible if you do share any such password or phrase, whether you do so knowingly or unknowingly. For the avoidance of doubt, we take no responsibility whatsoever for any theft/compromise of a secret recovery phrase that involves intrusion through any means into your personal device or a cloud provider’s data repository.

3.3 Log-In Credentials and API Authentication. To the extent we provide you with log-in credentials and API authentication generated by the Offerings, such log-in credentials and API authentication are for your use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your password or private key to your agents and subcontractors performing work on your behalf (and you take the full responsibility of doing so).

3.4 Applicability to Offerings that Facilitate Access to Addresses on Blockchain Protocols. For the avoidance of doubt, the terms of this Section 3 are applicable to all Offerings, such as creating a wallet, through which you generate a public/private key pair (which can be thought of as a blockchain account and related password) either with a blockchain protocol directly or with third party offerings, such as decentralized applications. You are solely responsible for the use and security of these security keys, and we will not be held responsible if you share any keys or secret recovery phrases with anyone else, whether knowingly or unknowingly.

4. Fees and Payment.

4.1 Publicly Available Offerings. Some Offerings may be offered to the public and licensed on a royalty free basis or some other plan, which we may roll-out and make available from time to time at our sole discretion.

4.2 Offering Fees. If your use of an Offering does not require an Order or some paid plan but software licensing fees are charged contemporaneously with your use of the Offering, those fees will be charged as described on the Site or in the user interface of the Offering. Such fees may be calculated by combining a fee charged by us and a fee charged by a third party offering that provides certain functionality or necessity related to the Offering. For those Offerings that entail an Order or some paid plan, we calculate and bill fees and charges according to your Order or paid plan. For such Offerings, on the first day of each billing period, you will pay us the applicable fees (the “Base Fees”) and any applicable taxes based on the Offerings. In addition, for particular Orders, we may issue an invoice to you for all charges above the Applicable Threshold for your plan (if applicable) which constitute overage fees for the previous billing period. If you make any other changes to the Offerings during a billing period, we will apply any additional charges or credits to the next billing period. We may bill you more frequently for fees accrued at our discretion upon notice to you. You will pay all fees in U.S. dollars unless the particular Offering specifies a different form of payment or otherwise agreed to by you and us in a signed writing. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim and without any deduction or withholding. Fees and charges for any new Offering or new feature of an Offering will be effective when we use commercially reasonable efforts to communicate updated fees and charges through our Site, the interface of the Offering itself or other public channels or, if you are on a paid plan, upon commercially reasonable efforts to notify you directly, but we may expressly state when notifying you that another effective date applies. We may increase or add new fees and charges for any existing Offerings you are using by using commercially reasonable efforts to notify users of the Offerings through our Site, the interface of the Offering itself, other public channels or, if you are on a paid plan, by giving you 30 days’ notice. Unless otherwise specified in an Order, all paid plan amounts due under this Agreement are payable within 30 days following receipt of your invoice. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

4.3 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of taxes unless otherwise noted in writing. We reserve the right to withhold taxes where required.

5. Temporary Suspension; Limiting API Requests.

5.1 Generally. We may suspend your right to access or use any portion or all of the Offerings immediately if we determine:

• (a) your use of the Offerings (i) poses a security risk to the Offerings or any third party, (ii) could adversely impact our systems, the Offerings or the systems of any other End User, (iii) could subject us, our affiliates or any third party to liability or increased risk of liability or harm or (iv) could be unlawful or potentially unlawful;
• (b) you are, or any affiliated End User is, in breach of this Agreement;
• (c) you are in breach of your payment obligations under Section 4; or
• (d) for entities, 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.

5.2 Effect of Suspension. If we suspend your right to access or use any portion or all of an Offering:

• (a) you remain responsible for all fees and charges you incur during the period of suspension; and
• (b) you will not be entitled to any fee credits for any period of suspension.

5.3 Limiting API Requests. We retain sole discretion to limit your API requests (“API Requests”) submitted in conjunction with your use of an Offering at any time if your usage of the Offering exceeds the usage Threshold specified in your paid plan (if any) or otherwise on the Site or user interface of the Offering. Further, excessive API requests, as determined by Xsolla ZK in our sole discretion, may result in the temporary or permanent suspension of your access to an account or to your use of the applicable Offering. Xsolla ZK is not required but will endeavor, when reasonable, to warn an account owner or user prior to suspension.

6. Term; Termination.

6.1 Term. For Offerings subject to a paid plan, the term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 6 or by separate written agreement. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 6.2 or the Appendix 1 - Additional Offerings as applicable. For Offerings that are not subject to a paid plan, the term of this Agreement will commence on the Effective Date and will remain in effect until you stop accessing or using the Offerings.

6.2 Termination.

• (a) Termination for Convenience. If you are not on a paid plan, you may terminate this Agreement for any reason by ceasing use of the Offering. For paid plans, if and when available, Xsolla ZK may terminate this Agreement for any reason after providing 30 calendar days’ written notice or immediately for good cause.
• (b) Termination for Cause.
• (i) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 10 calendar days from receipt of the other party’s notice of breach.
• (ii) By Us. We may also terminate this Agreement for cause immediately (A) if we have the right to suspend under Section 5, (B) if our relationship with a third-party partner who provides software or other technology we use to provide the Offerings expires, terminates or requires us to change the way we provide the software or other technology as part of the Offerings or (C) in order to avoid undue risk of violating the law.

6.3 Effect of Termination. Upon the Termination Date:

• (i) all your rights under this Agreement immediately terminate;
• (ii) each party remains responsible for all fees and charges it has incurred through the Termination Date and remains responsible for any fees and charges such party incurs during the post-termination period; and
• (iii) the terms and conditions of this Agreement shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and for the protection of the party in whose favor they operate. For instance, should this Agreement between you and us terminate, any dispute raised after you stop accessing or using the Offerings will be subject to the applicable provisions of this Agreement if that dispute relates to your prior access or use.

For any use of the Offerings after the Termination Date, the terms of this Agreement will again apply and, if your use is under a paid plan, you will pay the applicable fees at the rates under Section 4.

7. Proprietary Rights.

7.1 Your Content. Depending on the Offering, you may share Content with us. Except as provided in this Section 7, we obtain no rights under this Agreement from you (or your licensors) to Your Content; however, you consent to our use of Your Content in any manner that is consistent with the purpose of your use of the Offerings or that otherwise facilitates providing the Offerings to you.

7.2 Offerings License. We or our licensors own all right, title and interest in and to the Offerings, and all related technology and intellectual property rights. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to do the following: (a) access and use the Offerings solely in accordance with this Agreement; and (b) copy and use Our Content solely in connection with your permitted and lawful use of the Offerings. Except as provided in this Section 7.2, you obtain no rights under this Agreement from us, our affiliates or our licensors to the Offerings, including any related intellectual property rights. Some of Our Content and Third-Party Content may be provided to you under a separate license or other open source license. In the event of a conflict between this Agreement and any separate license, this Agreement will prevail with respect to Our Content and the separate license will prevail with respect to Third-Party Content that is the subject of such separate license.

7.3 License Restrictions. Neither you nor any End User will use the Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Except as otherwise authorized in a signed writing in advance, neither you nor any End User will or will attempt to (a) modify, distribute, alter, tamper with, repair or otherwise create derivative works of any Content included in the Offerings (except to the extent the Content included in the Offerings is provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble or decompile the Offerings or apply any other process or procedure to derive the source code of any software included in the Offerings (except to the extent applicable law does not allow this restriction), (c) access or use the Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, (d) use scraping techniques to mine or otherwise scrape data except as expressly authorized by us in advance in a signed writing or information recorded on non-permissioned public ledgers where it is blatantly apparent that such information is intended to be used for general public consumption, or (e) resell or sublicense the Offerings unless otherwise agreed to by us in a signed writing. You will not use Our Marks unless you obtain our prior written consent. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse or contribute to you or your endeavors, business or otherwise). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.

7.4 Suggestions. If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect and maintain our rights in the Suggestions (without the need for any consideration from us).

7.5 U.S. Government Users. If you are a U.S. Government End User, we are licensing the Offerings to you as a “Commercial Item” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights we grant you to the Offerings are the same as the rights we grant to all others under these Terms of Use.

8. Indemnification.

8.1 General.

• (a) You will defend, indemnify and hold harmless us, our affiliates and licensors, and each of their respective owners, board members, employees, officers, directors and representatives from and against any Losses arising out of or relating to any claim concerning: (i) breach of this Agreement or violation of applicable law by you; or (ii) a dispute between you and any of your customers or users. You will reimburse us for any damages and reasonable attorneys’ fees and expenses and costs, associated with claims described in (i) and (ii) above, and will pay the amount of any adverse final judgment or settlement.
• (b) We will defend, indemnify and hold harmless you from and against any Losses arising out of or relating to any claim arising from our intentional breach of this Agreement. We will reimburse you for reasonable attorneys’ fees and expenses and costs associated with the claims described in this paragraph, and will pay the amount of any adverse final judgment or settlement. However, we will not be required to spend more than $500 pursuant to this Section 8.1(b) in the aggregate, including without limitation attorneys’ fees, court costs, settlements, judgments and/or reimbursement costs.

8.2 Intellectual Property.

• (a) Subject to the limitations in this Section 8, you will defend Xsolla ZK and its affiliates and their respective owners, board members, partners, other End Users, employees, officers and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and you will pay the amount of any adverse final judgment or settlement.
• (b) Subject to the limitations in this Section 8 and the limitations in Section 10, we will defend you and your employees, officers and directors against any third-party claim alleging that the Offerings infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement. However, we will not be required to spend more than $3,000 pursuant to this Section 8 in the aggregate, including without limitation attorneys’ fees, court costs, settlements, judgments and/or reimbursement costs.
• (c) Xsolla ZK and our affiliates will have no obligations or liability under this Section 8.2 arising from infringement by you combining the Offerings with any other product, service, software, data, content or method. In addition, we and our affiliates will have no obligation or liability arising from your use of the Offerings after we have notified you to discontinue such use. The remedies provided in this Section 8.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Offerings or by Your Content.

8.3 Process. In no event will a party agree to any settlement of any claim that involves any commitment of the other, other than the payment of money (subject to the limitations set forth in this Agreement), without the written consent of the other party.

9. Disclaimers; Risk.

9.1 DISCLAIMER. THE OFFERINGS ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE OFFERINGS, THIRD PARTY CONTENT OR THIRD PARTY SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUIET ENJOYMENT, ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, THAT THE OFFERINGS, THIRD PARTY CONTENT OR THIRD PARTY SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS AND THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED AND ARE NOT RELYING UPON ANY REPRESENTATION OR WARRANTY FROM XSOLLA ZK OR ITS AFFILIATES (OR ANY OTHER PARTY) THAT IS NOT OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN A SEPARATE WRITTEN AGREEMENT BETWEEN US, AND YOU AGREE YOU WILL NOT TAKE A POSITION IN ANY PROCEEDING THAT IS INCONSISTENT WITH THIS PROVISION.

9.2 RISKS. OUR OFFERINGS RELY ON EMERGING TECHNOLOGIES, SUCH AS ETHEREUM AND ZKSYNC. SOME OFFERINGS ARE SUBJECT TO INCREASED RISK THROUGH YOUR POTENTIAL MISUSE OF THINGS SUCH AS PUBLIC/PRIVATE KEY CRYPTOGRAPHY, OR FAILING TO PROPERLY UPDATE OR RUN SOFTWARE TO ACCOMMODATE PROTOCOL UPGRADES. BY USING THE OFFERINGS YOU EXPLICITLY ACKNOWLEDGE AND ACCEPT THESE HEIGHTENED RISKS. YOU REPRESENT THAT YOU ARE FINANCIALLY AND TECHNICALLY SOPHISTICATED ENOUGH TO UNDERSTAND THE INHERENT RISKS ASSOCIATED WITH USING CRYPTOGRAPHIC AND BLOCKCHAIN-BASED SYSTEMS AND UPGRADING YOUR SOFTWARE AND PROCESSES TO ACCOMMODATE OFFERING AND PROTOCOL UPGRADES, AND THAT YOU HAVE A WORKING KNOWLEDGE OF THE USAGE AND INTRICACIES OF DIGITAL ASSETS SUCH AS ETHER (ETH) AND OTHER DIGITAL TOKENS AND ASSETS, SUCH AS THOSE FOLLOWING THE ERC-20 AND OTHER TOKEN STANDARDS. IN PARTICULAR, YOU UNDERSTAND THAT WE DO NOT OPERATE THE ETHEREUM PROTOCOL OR ANY OTHER BLOCKCHAIN PROTOCOL (UNLESS WE EXPRESSLY STATE OTHERWISE), COMMUNICATE OR EXECUTE PROTOCOL UPGRADES OR APPROVE OR PROCESS BLOCKCHAIN TRANSACTIONS ON BEHALF OF YOU. YOU FURTHER UNDERSTAND THAT BLOCKCHAIN PROTOCOLS PRESENT THEIR OWN RISKS OF USE, THAT SUPPORTING OR PARTICIPATING IN ANY PROTOCOL MAY RESULT IN LOSSES IF YOUR PARTICIPATION VIOLATES CERTAIN PROTOCOL RULES, THAT BLOCKCHAIN-BASED TRANSACTIONS ARE IRREVERSIBLE, THAT YOUR PRIVATE KEY AND SECRET RECOVERY PHRASE MUST BE KEPT SECRET AT ALL TIMES, THAT XSOLLA ZK WILL NOT STORE A BACKUP OF NOR WILL BE ABLE TO DISCOVER OR RECOVER YOUR PRIVATE KEY OR SECRET RECOVERY PHRASE, THAT DIGITALLY COPYING AND STORING YOUR SECRET RECOVERY PHRASE ON A CLOUD STORAGE SYSTEM OR OTHER THIRD PARTY SUPPORTED DATA STORAGE, INCLUDING YOUR PERSONAL DEVICE, MAY INCREASE THE RISK OF LOSS OR THEFT AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY APPROVALS OR PERMISSIONS YOU PROVIDE BY CRYPTOGRAPHICALLY SIGNING BLOCKCHAIN MESSAGES OR TRANSACTIONS, ESPECIALLY THOSE RESPONDING TO SOLICITATIONS AND OTHER PROMPTS FROM THIRD PARTIES. WITH RESPECT TO THIRD PARTIES, YOU ARE AWARE THAT SOCIAL ENGINEERING SCAMS PERPETRATED BY MALICIOUS THIRD PARTIES IS A RISK AND YOU AGREE THAT YOU AND YOU ALONE ARE RESPONSIBLE FOR TRANSACTIONS OR AGREEMENTS WITH SUCH THIRD PARTIES THAT MAY LEAD TO INJURY. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR VERIFYING THE LEGITIMACY OR SAFETY OR SUITABILITY OF ANY THIRD PARTY APPLICATIONS, SERVICES OR TOKENS THAT YOU MAY INTERACT WITH OR RECEIVE USING OUR OFFERINGS. YOU ARE AWARE THAT THERE ARE TECHNICAL MEASURES IN CERTAIN OFFERINGS THAT IMPROVE USER SAFETY, AND YOU ARE SOLELY RESPONSIBLE FOR UNDERSTANDING HOW THEY FUNCTION AND USING THEM AS APPROPRIATE.

YOU FURTHER UNDERSTAND AND ACCEPT THAT DIGITAL ASSETS PRESENT MARKET VOLATILITY RISK, TECHNICAL SOFTWARE RISKS, REGULATORY AND OTHER LEGAL RISKS AND CYBERSECURITY RISKS. YOU UNDERSTAND THAT THE COST AND SPEED OF A BLOCKCHAIN-BASED SYSTEM VARIES, THAT COST MAY INCREASE DRAMATICALLY AT ANY TIME AND THAT COST AND SPEED IS NOT WITHIN THE CAPABILITY OF XSOLLA ZK TO CONTROL. YOU UNDERSTAND THAT PROTOCOL UPGRADES MAY INADVERTENTLY CONTAIN BUGS OR SECURITY VULNERABILITIES THAT MAY RESULT IN LOSS OF FUNCTIONALITY AND ULTIMATELY FUNDS.

YOU UNDERSTAND AND ACCEPT THAT XSOLLA ZK DOES NOT CONTROL ANY BLOCKCHAIN PROTOCOL, NOR DOES XSOLLA ZK CONTROL ANY SMART CONTRACT THAT IS NOT OTHERWISE OFFERED AS PART OF THE OFFERINGS AND IS NOT ITSELF A THIRD PARTY SERVICE. YOU UNDERSTAND AND ACCEPT THAT XSOLLA ZK DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE TRANSITION OF ANY BLOCKCHAIN PROTOCOL FROM PROOF OF WORK TO PROOF OF STAKE OR THE FUNCTIONING OF ANY PROTOCOL AFTER IT UNDERGOES A TECHNICAL UPGRADE. YOU UNDERSTAND AND ACCEPT THAT XSOLLA ZK DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR ANY THIRD PARTY SERVICES. YOU AGREE THAT YOU ALONE, AND NOT XSOLLA ZK OR ANY AFFILIATE, IS RESPONSIBLE FOR ANY TRANSACTIONS THAT YOU ENGAGE IN WITH REGARD TO SUPPORTING ANY BLOCKCHAIN PROTOCOL WHETHER THROUGH TRANSACTION VALIDATION OR OTHERWISE, OR ANY TRANSACTIONS THAT YOU ENGAGE IN WITH ANY THIRD-PARTY-DEVELOPED SMART CONTRACT OR TOKEN, INCLUDING TOKENS THAT WERE CREATED BY A THIRD PARTY FOR THE PURPOSE OF FRAUDULENTLY MISREPRESENTING AFFILIATION WITH ANY BLOCKCHAIN PROJECT. YOU AGREE THAT XSOLLA ZK IS NOT RESPONSIBLE FOR THE REGULATORY STATUS OR TREATMENT IN ANY JURISDICTION OF ANY DIGITAL ASSETS (INCLUDING TOKENS) THAT YOU MAY ACCESS OR TRANSACT WITH OR WHILE USING OUR OFFERINGS. YOU EXPRESSLY ASSUME FULL RESPONSIBILITY FOR ALL OF THE RISKS OF ACCESSING AND USING THE OFFERINGS TO INTERACT WITH BLOCKCHAIN PROTOCOLS.

10. Limitation of Liability.

10.1 Limitation of Amount. WITH THE EXCEPTION OF CLAIMS RELATING TO A BREACH OF OUR PROPRIETARY RIGHTS AS GOVERNED BY SECTION 7 AND INDEMNIFICATION AS GOVERNED BY SECTION 8, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT (REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM NEGLIGENCE OR OTHERWISE) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE OFFERINGS GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT FROM WHICH THE LIABILITY AROSE OR, IF NO FEES HAVE BEEN PAID, ONE THOUSAND US DOLLARS ($1,000). THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT (TO THE MAXIMUM EXTENT PERMITTED BY LAW) YOUR PAYMENT OBLIGATIONS UNDER SECTION 4. NEITHER XSOLLA ZK NOR AN AFFILIATE SHALL HAVE ANY LIABILITY TO YOU WITH RESPECT TO ANY OFFERING EXCEPT TO THE EXTENT THAT SUCH DAMAGES ARE DETERMINED BY FINAL JUDGMENT OF A COURT OR ARBITRATOR (SUBJECT TO THE LIMITATIONS SET FORTH HEREIN).

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATE’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11. Binding Arbitration and Class Action Waiver.

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

11.1 Binding Arbitration. Any dispute, claim or controversy (“Claim”) relating in any way to this Agreement, the Site or your use of the Offerings will be resolved by binding arbitration as provided in this Section 11, rather than in court, except that you may assert claims in small claims court if your claims qualify.

11.1.1 If you are located in the United States: This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the State of California. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. The arbitration will be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures (“Rules”) as those Rules exist on the effective date of this Agreement. The arbitrator’s decision shall be final, binding and non-appealable. Judgment upon the award may be entered and enforced in any court having jurisdiction. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or of the arbitrator’s award; any such suit may be brought only in a Federal District Court or a California State court located in Los Angeles County. The arbitrator, and not any federal, state or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability or formation of this Agreement, including any claim that all or any part of the Agreement is void or voidable. If for any reason a claim proceeds in court rather than in arbitration, we and you waive any right to a jury trial. Notwithstanding the foregoing, we and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

11.1.2 If you are located in the United Kingdom: This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Any dispute, claim or controversy relating in any way to this Agreement, the Offerings, your use of the Offerings or to any products or services licensed or distributed by or through us will be resolved by binding arbitration as provided in this clause. Prior to commencing any formal arbitration proceedings, the parties shall first seek settlement of any claim by mediation in accordance with the LCIA Mediation Rules, which Rules in their entirety are deemed to be incorporated by reference into this clause. If the dispute is not settled by mediation within 21 days of the commencement of the mediation, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules, which are deemed to be incorporated by reference into this clause. The language to be used in the mediation and in the arbitration shall be English. The seat or legal place of arbitration shall be London.

11.1.3 If you are located in any territory that is not specifically enumerated in Sections 11.1.1 or 11.1.2, you may elect for either of Section 11.1.1 or 11.1.2 to apply to you. Any Claim relating in any way to this Agreement, the Offerings, your use of the Offerings or to any products or services licensed or distributed by or through us will be resolved by binding arbitration as provided in this clause.

11.2 Class Action Waiver. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AND WE EXPRESSLY WAIVE ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. Unless both you and we agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this clause’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes. For any court proceedings subject to this clause, they must be brought only in a Federal District Court or a California State Court located in Los Angeles County.

11.3 30-Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the email address notices@x.la with subject line LEGAL OPT OUT. The notice must be sent within 30 days of your first use of the Offerings, otherwise you shall be bound to arbitrate disputes and will be deemed to have agreed to waive any right to pursue a class action in accordance with the terms of those clauses. If you opt-out of these provisions, we will also not be bound by them.

12. Miscellaneous.

12.1 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior signed written consent. Any assignment or transfer in violation of this Section 12.1 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (b) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for us as a party to this Agreement and we are fully released from all of our obligations, duties and liabilities to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

12.2 DAOs. As a blockchain native company, we may interact with and provide certain Offerings to DAOs. Due to the unique nature of DAOs, to the extent the DAO votes in favor of and/or accepts such Offerings from Xsolla ZK, the DAO has acknowledged and agreed to these Terms and this Agreement in their entirety. Since DAOs operate on decentralized networks, Xsolla ZK makes no guarantee regarding the enforceability or consistency of DAO decisions, nor does it guarantee that a DAO's vote or acceptance reflects the views of all members within that DAO.

12.3 Entire Agreement and Modifications. This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. If the terms of this document are inconsistent with the terms contained in any other Policy, the terms contained in this document will control. Any modification to the terms of this Agreement may only be made in writing and when issued by us.

12.4 Force Majeure. Neither party nor their respective affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, utilities or other telecommunications failures, cyber attacks, earthquake, storms or other elements of nature, pandemics, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.

12.5 Export and Sanctions Compliance. In connection with this Agreement, you will comply with all applicable import, re-import, sanctions, anti-boycott, export and re-export control laws and regulations, including all such laws and regulations that prohibit certain transactions. For clarity, you are solely responsible for full compliance related to the manner in which you choose to access and use the Offerings. You may not access or use any Offering if you are the subject of U.S. sanctions or of sanctions consistent/comparable with U.S. law imposed by the governments of the country where you are accessing and/or using the Offering.

12.6 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency or employment relationship. 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. We reserve the right to develop or have developed for it products, services, concepts, systems or techniques that are similar to or compete with the products, services, concepts, systems or techniques developed or contemplated by the other party, and/or to assist third party developers or systems integrators who may offer products or services which compete with your products or services (if applicable).

12.7 Eligibility. If you are under the age of majority in your jurisdiction of residence, you may use the Site or Offerings only with the express consent of and under the supervision of your parent or legal guardian. Consistent with the requirements of the Children’s Online Privacy Protection Act (COPPA), if we learn that we have received any information directly from a child under age 13 without first receiving his or her parent’s or legal guardian’s verified consent, we will use that information only to respond directly to that child (or his or her parent or legal guardian) to inform the child that he or she cannot use the Site or Offerings (and subsequently we will delete that information).

NOTICE TO PARENTS AND GUARDIANS: By granting your minor permission to access the Site or Offerings, you agree to these Terms of Use on behalf of your minor (and all other applicable Policies, such as our Global Privacy Notice, Cookie Policy and EULA ). You are responsible for exercising supervision over your minor’s online activities. If you do not agree to these Terms of Use, do not let your minor access or use the Site or Offerings.

12.8 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

12.9 Notice.

• (a) To You. We may provide any notice to you under this Agreement using commercially reasonable means, including: (i) posting a notice on the Site; (ii) sending a message to the email address then associated with your account; (iii) posting the notice in the interface of the applicable Offering; and/or (iv) using public communication channels. Notices we provide by posting on the Site or using public communication channels will be effective upon posting, and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current to the extent you have an account and to check your spam or other filters to ensure receipt of any notice. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
• (b) To Us. To give us notice under this Agreement, you must contact us by email at notices@x.la with subject heading entitled “NOTICE”.

12.10 No Third-Party Beneficiaries. Except as expressly otherwise set forth herein, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

12.11 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.

12.12 Severability. 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. Any invalid or unenforceable portions will be interpreted to affect the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

12.13 Notice and Procedure for Making Claims of Copyright Infringement. If you are a copyright owner or agent of the owner, and you believe that your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please provide us a written notice at the address below with the following information:

• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• a description of the copyrighted work or other intellectual property that you claim has been infringed;
• a description of where the material that you claim is infringing is located with respect to the Offerings;
• your address, telephone number and email address;
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
• a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

You can reach us at:

• Email: notices@x.la with Subject Line “Copyright Notice”; or
• Mail (via postage pre-paid, first class mail): Attention: Copyright Notice, Xsolla ZK, Inc., 15260 Ventura Blvd, #2230, Sherman Oaks, California, USA 91403.

13. Definitions.

“Acceptable Use Policy” means the policy set forth below, as it may be updated by us from time to time. You agree not to, and not to allow third parties to, use the Offerings:

• to violate, or encourage the violation of, the legal rights of others (for example, this may include not allowing End Users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act);
• to engage in, promote or encourage any illegal or infringing content;
• for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
• to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes or other items of a destructive or deceptive nature;
• to interfere with the use of the Offerings, or the equipment, systems, softwares, etc. used to provide the Offerings, by customers, authorized resellers or other authorized users;
• to disable, interfere with or circumvent any aspect of the Offerings (for example, any Thresholds or limits);
• to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertising or other solicitation; or
• to use the Offerings, or any interfaces provided with the Offerings, to access any other product or service in a manner that violates the terms of service of such other product or service.

“API” means an application program interface.

“API Requests” has the meaning set forth in Section 5.3.

“Applicable Threshold” or “Threshold” has the meaning set forth in Section 4.2.

“Base Fees” has the meaning set forth in Section 4.2.

“Content” means any data, text, audio, video or images, software (including machine images), and any documentation.

“DAO” means Decentralized Autonomous Organization.

“Digital Assets” means any digital asset (including virtual currency or virtual artwork, designs, or drawings) which is a digital representation of value based on (or built on top of) a cryptographic protocol of a computer network.

“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Offerings under your account.

“Fees” has the meaning set forth in Section 4.2.

“Losses” means any claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and settlement costs).

“Our Content” means any software (including machine images), data, text, audio, video, images and/or documentation that we offer in connection with the Offerings.

“Our Marks” means any trademarks, service marks, service or trade names, logos and other designations of Xsolla ZK or an affiliate (or licensor, where appropriate) that we may make available to you in connection with this Agreement.

“Order” means an order for Offerings executed through an order form directly with Xsolla ZK or through a cloud vendor, such as Amazon Web Services, Microsoft Azure, or Google Cloud.

“Offerings” means each of the products and services, including but not limited to wallet creation and any other features, tools, materials or services offered from time to time, by us or our affiliates.

“Policies” means the Global Privacy Notice, Cookie Policy and EULA and any supplemental Policies or addendums applicable to any Service as provided to you, and any other Policy or terms referenced in or incorporated into this Agreement, each as may be updated by us from time to time.

“Privacy Policy” means our Global Privacy Notice located at https://x.la/bazaar/docs/privacy-policy (and any successor or related locations designated by us), as it may be updated by us from time to time.

“Service Offerings” means the Services (including associated APIs), Our Content, Our Marks and any other product or service provided by us under this Agreement. Service Offerings do not include Third-Party Content or Third-Party Services.

“Suggestions” means all suggested improvements to the Service Offerings that you provide to us.

“Supported Digital Assets” means only those particular Digital Assets listed as available to interact with or self-custody in your Ethereum (or any other) wallet. Services and supported assets may vary by jurisdiction.

“Term” means the term of this Agreement described in Section 6.1.

“Termination Date” means the effective date of termination provided in accordance with Section 6, in a notice from one party to the other.

“Third-Party Content” means Content made available to you by any third party on the Site or in conjunction with the Offerings.

“Your Content” means content that you or any End User transfers to us for storage or hosting by the Offerings and any computational results that you or any End User derive from the foregoing through your use of the Offerings, excluding however any information submitted to a blockchain protocol for processing.

Appendix 1 - Additional Offerings

Bridging

Please visit x.la/bridge for details.