Updated January 24, 2023
BY SUBSCRIBING TO THE CO:CREATE PLATFORM (AS DEFINED BELOW IN SECTION 2) THROUGH THE CO:CREATE-APPROVED ORDER FORM OR ONLINE SUBSCRIPTION PROCESS (“ORDER”), THESE TERMS AND ORDER GOVERNS CLIENT’S ACCESS AND USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT AND USING OR ACCESSING ANY OF THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT, AS UPDATED FROM TIME TO TIME.
IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS “CLIENT” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT BE PERMITTED TO USE THE SERVICES.FURTHERMORE, BY ACCEPTING THIS AGREEMENT YOU REPRESENT AND WARRANT THAT ANY AND ALL INFORMATION YOU PROVIDE US THROUGH THE SERVICES IS TRUE, ACCURATE AND COMPLETE. THE PROVISION OF FALSE OR FRAUDULENT INFORMATION IS STRICTLY PROHIBITED.
“Agreement” or “Terms” means these Terms of Service and all materials and links referred to herein.
“Client” or “You” means the individual or legal entity licensing the services hereunder.
“Co:Create” means Gesso Labs, Inc. d/b/a Co:Create.
“Parties” means client, or you, together with Co:Create.
2.1 The Co:Create Platform. Co:Create’s platform is a unique, proprietary web3 loyalty platform (“Platform”) that offers solutions for blockchain enabled loyalty and referral programs (each also referred to as a “Product” and, as may be combined, “Products”). “Services,” as used in this Agreement, refers to a Client’s access to the Platform, Products and other ancillary services specified in the Order. All content, data and other information that Client submits to the Services through its use thereof, including, without limitation, such information as Client may collect through the Services from End-Users, is “Client Materials” for the purposes of this Agreement.
2.2 Client Access. Subject to the terms and conditions set forth herein (including without limitation payment of the applicable fees), and during the term of this Agreement only, Client may access and use the Services only for its internal business purposes in accordance with the terms of this Agreement, including any usage limits on an applicable Order. Access to the Services is limited to Client’s employees and contractors acting for the sole benefit of Client (“Permitted Users”). Client and its Permitted Users may need to register for a Co:Create account in order to access or use the Services. Client is responsible for ensuring that account registration information is accurate, current and complete.
2.3 Development of the Platform. During the Term, Co:Create plans on actively developing the Services. Co:Create and Client shall work collaboratively to identify changes to the Services which may make the Services more suitable for Client, including: the Platform’s ability to: (i) issue and manage the blockchain based tokens minted by the Client using the Platform (“Loyalty Tokens”) and, (ii) utilize the related features available for use on the Platform. Co:Create shall use commercially reasonable efforts to implement those changes which Co:Create believes would advance Co:Create’s business objectives. Co:Create may use such feedback or suggestions without restriction or obligation.
2.4 Orders. All Orders shall describe the Services to be provided to Client, the amounts to be paid for those Services, as well as any other terms or conditions related to those Services which are in addition to or different from those set forth in this Agreement or in an online subscription. All Orders shall incorporate all terms and conditions of this Agreement. In the event of a conflict between this Agreement and an Order, the Order shall control.
2.5 Loyalty Tokens. Except for expressly set out in an Order as payment for services rendered, Co:Create does not have any claim to the ownership of any Loyalty Tokens. All decisions with respect to a Loyalty Token, including the determination whether, to whom, and on what terms to issue a Loyalty Token shall be in the sole discretion of the Client.
3. Intellectual Property.
3.1 Co:Create Materials. Client acknowledges that all intellectual property rights in and to Co:Create Materials are and shall be exclusively owned by Co:Create excluding any Client Materials. Client agrees to assign, and hereby does assign, all right, title and interest it may have or subsequently obtain in Co:Create Materials or any intellectual property rights therein to Co:Create. Client further agrees to execute such further agreements and take such further actions as Co:Create may request to establish, perfect or evidence Co:Create’s sole ownership of, or to enable Co:Create to register or obtain intellectual property protection for, Co:Create Materials. “Co:Create Materials” means the Platform and all parts or aspects thereof, including templates used to generate Smart Contracts, as well as any other materials created or obtained by Co:Create in connection with this Agreement, and any changes or potential changes to the Platform identified in connection with this Agreement.
3.2 Client Materials. Co:Create agrees that all Client Materials, including any smart contracts for use on the blockchain created using the Platform and deployed by Client (“Smart Contracts”) deployed by Client using the Platform shall be owned by Client, except that any Co:Create Materials incorporated in a Smart Contract shall continue to be owned by Co:Create. Co:Create agrees to grant, and hereby does grant, Client a perpetual, royalty free, transferrable, sublicensable license to use, reproduce and otherwise exploit any Co:Create Materials incorporated in a Smart Contract. “Client Materials” means all copyright and trademarks owned by Client, the Smart Contracts and all parts or aspects thereof, as well as any changes or potential changes to the foregoing identified in connection with this Agreement.
3.3 Open Source Software. The Services may include certain open source components owned by a third party that are subject to open source licenses (“Open Source Software”). Some of the Open Source Software is not subject to the terms and conditions of these Terms. Instead, each item of such Open Source Software is licensed under the applicable license terms which accompany such Open Source Software. Nothing in these Terms limits your rights under, nor grants you rights that supersede, the terms and conditions of any applicable license terms for the Open Source Software.
4. Limitations of Use.
4.1 Internal Business Use. Client’s use of the Services shall be limited to its own internal business use. Except as specifically permitted herein, Client shall not (i) sell, license (or sub-license), lease, assign, transfer, pledge or share any of its rights under this Agreement with/to any other party, entity or person, (ii) transfer, distribute, copy all or any part of the Services and/or the Co:Create Materials, (iii) refer to the Services by use of framing and/or deep-linking, (iv) make use of the Services or distribute any part thereof in any jurisdiction where same is illegal or where such use or distribution would subject Co:Create or its affiliates to any registration requirement within such jurisdiction or country (v) use, encourage, promote, facilitate or instruct others to use the Platform for any illegal, harmful or offensive use, (vi) promote any content, products, services, or other information that may be illegal to sell or promote under any applicable law or may reasonably be perceived to be unlawful, inflammatory, offensive or otherwise inconsistent with the spirit of Co:Create’s Services, brand or image, (vii) transmit any viruses or other harmful, infringing, illegal, disruptive or destructive content, messages or files, (viii) visit the Platform or access the Services through unauthorized means, including, without limitation, any data mining, robots/bots, or similar data gathering and extraction tools to extract for re-utilization of any parts of the Platform, (ix) distribute, publish, send or facilitate the sending of unsolicited mass messages, promotions, advertising, or solicitations (e.g. “spam”) including unlawful commercial advertising and informational announcements as further described in Section 4.2, (x) distribute, publish, send, or facilitate the sending of any inappropriate, inaccurate, misleading, fraudulent or otherwise illegal content or content which infringes intellectual property rights of third parties or their right for privacy, (xi) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), make any attempt to discover the source code of the Platform and/or the Services and/or any other software available therein or create derivative works thereof, (xii) remove any copyright, trademark or other proprietary rights notices contained in or on the Platform, (xiii) remove, change or modify any trademarks from or attach any additional trademarks to the Platform, (xiv) use the Platform or the Services in a manner that subjects any part thereof to any obligation to disclose or distribute the source code thereof and/or that may cause others to have the right to modify or create derivative works thereof; or cause them to become redistributable at no charge. Client is solely responsible for obtaining, paying for, repairing and maintaining all the equipment, software, hardware and services required for Client to access the Services.
5. Term and Termination.
5.1 Term. The Term of this Agreement shall remain in effect for one year following the Effective Date unless terminated earlier pursuant the terms of this Agreement (“Term”). This Agreement may be extended by mutual written agreement by the Parties.
5.2 Orders. In the event that one or more Statements of Work remain outstanding as of the termination or expiration of this Agreement, the Term shall be deemed to continue for purposes of those Statements of Work until those Statements of Work are terminated or all of the Parties’ respective obligations under those Statements of Work have been fulfilled.
5.3 Termination for Convenience. Either Party may terminate this Agreement or any Order for any reason or no reason by providing thirty (30) days written notice to the other.
5.4 Termination for Cause. Client may terminate this Agreement by providing written notice to the other in the event that the other Party materially breaches this Agreement and such breach is not cured within thirty (30) days of the non-breaching Party providing notice of the breach.
5.5 Suspension of Service. Co:Create may suspend Client’s access to the Services if Client breaches Section 4 (Limitations on Use) or Section 8 (Compliance with Law), if Client’s account is 30 days or more overdue or if Client’s actions risk harm to Co:Create, other Clients, or the security, availability or integrity of the Services. Where practicable, Co:Create will use reasonable efforts to provide Client with prior notice of the suspension. Once Client resolves the issue requiring suspension, Co:Create will promptly restore Client’s access to the Service in accordance with this Agreement. Co:Create reserves the right, but is not obligated, to monitor and audit Client’s use of the Services for any reason or no reason, without notice, to ensure Client’s compliance with this Agreement.
5.6 Survival. Notwithstanding anything to the contrary, the provisions of Sections 3 (Intellectual Property), 6 (Mutual Obligations), 7 (Compliance with Law), 8 (Indemnification), 10 (Limitations and Disclaimers), 11 (Non-Exclusivity and Non-Solicitation), and 12 (Confidentiality), shall survive any termination or expiration of this Agreement.
6.1 Invoices. If payments are required pursuant to a Order, Client shall pay all amounts specified within thirty (30) days of receiving an invoice therefor.
6.2 Taxes. All fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Co:Create's income.
6.3 Late Penalty. If Client fails to make any payment when due then, in addition to all other remedies that may be available, Co:Create may charge interest on past due amounts at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law.
7. Mutual Obligations. Each Party represents and warrants that:
7.1 it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
7.2 it has the full right, power, and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement;
7.3 the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
7.4 when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such party in accordance with its terms.
8. Compliance with Law. Client represents, warrants and covenants to Co:Create that Client’s use of the Services shall comply with the limitations of use in Section 4 (Limitations of Use) and all applicable laws, rules or regulations of any jurisdiction, including, without limitation, those relating to (i) communication by telephone, text/SMS/MMS message or email for advertising, marketing or other purposes, (ii) monitoring or recording of electronic or telephonic communications, (iii) the privacy, security or protection of ‘personal data’ or ‘personal information’, as such terms are defined under privacy laws (collectively, “Personal Information”), including, without limitation, as applicable to the collection, storage, retention, processing, transfer, disclosure, sharing, disposal or destruction of Personal Information, (iv) requirements for websites and mobile applications, online behavioral advertising, or online tracking technologies, or (v) applicable economic or financial sanctions or trade embargoes, including those administered by the U.S. government through the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or the U.S. Department of State, or the Israeli government (collectively, “Laws”).
9.1 Indemnification by Co:Create. Co:Create will defend Client, its officers, directors, employees and affiliates (“Client Indemnified Parties”) from and against any third-party claim made against a Client Indemnified Party to the extent alleging that the Platform or the Services, when used by Client as authorized in this Agreement, infringes such third-party’s U.S. patent, copyright, trademark or trade secret, and will indemnify and hold harmless Client Indemnified Parties against any damages or costs awarded against Client (including reasonable attorneys’ fees) or agreed in settlement by Co:Create resulting from the claim.
9.2 Indemnification by Client. Client will defend Co:Create, its officers, directors, employees, and affiliates (“Co:Create Indemnified Parties”) from and against any third-party claim, demand, suit, or proceeding made or brought against a Co:Create Indemnified Party to the extent resulting from Client Materials, or Client’s breach or alleged breach of Section 7 (Mutual Obligations) or Section 8 (Compliance with Law), Client’s use of the Services or any activities other than in accordance with these Terms; and will indemnify and hold harmless Co:Create Indemnified Parties against any damages or costs awarded against Co:Create Indemnified Parties (including reasonable attorneys’ fees) or agreed in settlement by Client resulting from the claim.
10. Limitations and Disclaimers.
10.1 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7 (MUTUAL OBLIGATIONS), THE PLATFORM AND ALL SERVICES, SMART CONTRACTS, SUGGESTIONS AND OTHER ITEMS ARE PROVIDED "AS IS" AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, EACH PARTY MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, SMART CONTRACTS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET EITHER PARTY’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN A STATEMENT OF WORK, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
10.2 IN NO EVENT WILL CO:CREATE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.3 EXCEPT FOR THE INDEMNIFICATION PROVIDED IN SECTION 9 (INDEMNIFICATION), IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF EITHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE US DOLLAR AMOUNTS PAID OR PAYABLE BY CUSTOMER PURSUANT TO THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11. Non-Exclusivity, Non-Solicitation.
11.1 Non-Exclusivity. Client acknowledges that Co:Create may perform the same or similar services for other Parties, and that nothing in this Agreement shall be deemed to restrict in any way Co:Create’s ability to offer the Platform or any related services to anyone.
11.2 Non-Solicitation. Client agrees that, during the Term of this Agreement and for a period of one (1) year thereafter, it shall not directly or indirectly induce any employee of Co:Create to terminate or negatively alter his or her relationship with Client.
12.1 During the Term, each Party, (as the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media , and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 12 by the Receiving Party or any of its Representatives, (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information, (iii) was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party, (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.
12.2 The Receiving Party shall not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its officers, employees, consultants, and legal advisors who have a "need to know", who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section;
12.3 The Receiving Party agrees to use the Confidential Information of the Disclosing Party only for the purpose of performing its obligations or exercising its rights under this Agreement.
12.4 The Receiving party agrees to protect the confidentiality of the other Party’s Confidential Information using at least the same degree of care as it uses to protect its own Confidential Information, but in any case no less than reasonable care.
13. Press Release. The Parties hereto will issue a joint press release announcing the execution of this Agreement. Specific details to be contained in such release shall be negotiated by the Parties in good faith, and neither Party shall issue any press release without the prior written approval of the other, such approval not to be unreasonably withheld or delayed.
14. Marketing. Client agrees that, notwithstanding anything to the contrary in this Agreement, Co:Create may use Client’s name, logos and other identifying indicia to identify Client as a customer of Co:Create, and may use such materials, as well as other information learned or generated in connection with this Agreement in case studies or otherwise as part of its marketing or promotional efforts.
15. General Provisions.
15.1 No Partnership. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email with confirmation of delivery if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses indicated on the signature page, including email, hereto (or at such other address for a Party as shall be specified in a notice given in accordance with this Section.
15.3 Entire Agreement. This Agreement, together with all Exhibits, and Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
15.4 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.5 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the state of Delaware without giving effect to any choice or conflict of law provision or rule (whether of Tennessee or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the state of Tennessee in each case located in the city of Nashville, Tennessee and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
15.6 Damages. Each Party acknowledges that a breach by a Party of Section 3 (Intellectual Property), Section 11 (Non-Exclusivity, Non-Solicitation), or Section 12 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching Party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
15.7 Counterparts. An Order may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of an Order delivered by facsimile, email or other means of electronic transmission (such as DocuSign) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
15.8 Assignment. This Agreement may not be assigned by either Party without the prior written approval of the other, not to be unreasonably withheld.