Last updated: 11/03/2022
1. These User Terms
1.1 What these User Terms cover. These User Terms set out the terms and conditions on which we provide the Cirkay platform services at the www.cirkay.com domain, a marketplace for creators to offer exclusive digital content to engaged fans (Member(s)), enabling them to procure one or more digital, unique-type of non-fungible token (NFT) – Access to the marketplace will be through the use of a Utliity NFT known as a ‘Cirkay Member Pass’ (Pass(es)) – enabling Member(s) to participate in and receive creator content provided exclusively to that creator’s Pass holders via the Eluv.io blockchain and Eluv.io’s proprietary content fabric (in these User Terms, the Service). A further background description of the Service (which does not form a part of these User Terms and the services contract you have with us) which also explains Eluvio Inc.’s role in the Service and its underlying technology, can be found here. We use the word creator to also mean any artist, writer or musician or other content creator whose content we may make available to Members as part of the Service.
1.2 Why you should read these User Terms. Please read these User Terms carefully before you engage with our Service and before you join as a Member receiving Pass(es) as they may affect your legal rights. These User Terms tell you who we are, how we will provide Service to you, your appropriate use of the Service and your Pass, how you and we may change or end the services contract, what to do if there is a problem and other important information. You acknowledge and agree that we provide the Service using [platform services] made available to us by Eluv.io and that accordingly as an ‘end user’ you may be asked to enter into binding terms or service with Eluv.io pursuant to clause [3.4] below.
1.3 By selecting the “I accept” (or similar) checkbox, completing the Member account registration process, using our Service or any part of it and/or purchasing items, you agree to be bound by these User Terms and all their terms and conditions incorporated. You may not access or use services we provide (or purchase any items) if you do not agree to these User Terms.
2. Information about us and how to contact us
2.1 Who we are. We are Push Entertainment Limited (“Push”/“we”/“us”/“our”) a company registered in England and Wales with company registration number 05149084 and registered office at Push Entertainment Ltd, International House, 61 Mosley Street, Manchester, M2 3HZ.
2.2 How to contact us. You can contact us by writing to us at [email protected] and at Alpha House, 4 Greek Street, Stockport, Cheshire SK3 8AB, U.K.
2.3 How we may contact you. If we have to contact you we will do so by using the mobile phone number you provide us, or by writing to you at the email address (or postal address) you provided to us. When using the words “writing” or “written” in these user Terms, this includes emails.
3. Our Services
3.1 By engaging with our Service and becoming a Member you are agreeing that these User Terms govern your services contract with us.
3.2 We endeavour to enable Members to receive their Pass(es) either free of charge or at a low cost. Once attributed, a Member will be enabled to hold that Pass in his own online media wallet (Wallet) for use to unlock content on a one off or evolving basis.
3.3 The Service will enable you to add any subsequent purchase you may make via the Service in your Wallet which holds your Pass and on which that purchase is recorded. Similarly, when you purchase other digital content (such as music, a movie, a picture, emoji or meme) these [ will ] be held within your Wallet. Any creator may via his marketplace, offer one or more events accessible to a Member acquiring one or more NFT’s and/or Passes for that purpose.
3.5 The Service may facilitate the ability to buy and sell NFT’s and/or Passes, other digital assets, physical assets (and any software embedded within those) between Members. Any such features of the Service may be subject to your agreement of further terms and conditions introduced by us at the time and to which you would be asked to agree.
3.7 You acknowledge that content made available to you through our Service is provided to us by creators or their third party licensors) and accordingly we make no representations, statements or guarantees about the description, quality, suitability or authenticity of any such content, nor shall we be responsible in any way, directly or indirectly, for any representations, statements or guarantees made by any creator in relation to the description, quality, suitability and authenticity of any content, regardless of any indicators and messages contained within our Service regarding the content. In such an event, your sole course of action shall be against the creator and/or any other relevant Member.
4. License to access, engage and use our Service
Subject to your continued compliance with all of these User Terms, any subsequent amendments to them or new terms and conditions implemented at any time during your access, use and/or engagement of our Services and the terms and conditions of any relevant third-party, you are hereby granted a limited, non-exclusive, non-transferable, non-sublicensable, and personal licence to access, use and engage the Service. Such licence shall be subject to these User Terms – and in particular the acceptable use provisions in clause 6 below – and does not provide any right to: (a) use any data mining, bots or similar data gathering or extraction methods; (b) download any portion of the Service, except as expressly permitted by us; and (c) use the Service other than for its intended purposes.
5. Member registration
5.1 In order to access, use and engage with our Service you will need to register to become a Member. By becoming a Member you agree to: (a) provide accurate, current and complete personal information about yourself; (b) maintain and promptly update from time to time as necessary your personal information; (c) maintain the security of any password you use (including under clause 6 below) and accept all risks of unauthorised access to your Member account and the information you provide to us; and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Service, or your Member account.
5.2 In addition to the obligations outlined at clause 5.1, you also agree that you will not:
(a) create another Member account if we have already been required to disable another account that you had, subject to our prior written agreement;
(b) instruct another individual to create a Member account, under their personal details for your own use of the Service;
(c) buy, sell, lease or assign access to your Member account or username, subject to our prior written agreement;
(d) share your Member password or other credentials with anyone; or
(e) log in or try to log in to access the Service through unauthorised third-party applications, software, individuals or corporate bodies.
5.3 In the event that we have reasonable cause to believe that your Member account is being used in connection with any illegal activity or has been used in breach of any of these User Terms, we may require you to provide additional information and documents at the request of any competent authority or in case of application of any applicable law or regulation or in order to aid our internal investigation into the use of your Member account in connection with these User Terms.
5.4 In such cases, we may (at our entire discretion) pause or cancel your Member account and any ongoing, future or recently completed transactions in which your Member account has been involved, until such additional information and documents are reviewed by us and accepted as satisfying the requirements of any applicable law and these User Terms. In such an event, we will not be liable for any financial loss or damage of any kind suffered by you as a result of any such temporary pause or cancellation of your Member account. Further, you would become solely responsible for any financial loss or damage of any kind suffered by another Member or relevant third-party as a result of not complying with these User Terms or suspected breach of any applicable law.
6. Permitted Use
6.1 You agree that you remain at all times responsible for your conduct while using the Service and not to act in breach of applicable laws, in breach of applicable terms of service to which you have agreed (including, without limitation, these User Terms), or to infringe the copyright or any other intellectual property (or similar third party right) in your use of the Service.
6.2 You agree that you remain at all times responsible for keeping the details of any Pass, passwords, and any other access credentials associated with the Service confidential to yourself. You are not permitted to sell or transfer any of them to any other person or entity. You agree to promptly notify us about any unauthorised access to any Pass [NFT] or Wallet, passwords or access credentials that you become aware of.
6.3 You agree not to:
(a) provide false or misleading information to us, another Member or any relevant third-party in connection with your use of the Service or appear as another person or create a misleading username;
(b) utilise data gathered from our Service to contact individuals, businesses, or other individuals or entities;
(c) utilise data gathered from our Service for any direct marketing activity use or attempt to use another Member’s account without authorisation from such Member and us;
(d) place misleading offers or trades (if facilitated by the Service);
(e) use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other Members from fully enjoying the Service, or that could damage, disable, overburden or impair the functioning of the Service in any manner;
(f) create, use, or distribute any software, or interact with any application programming interface in any way that may damage, harm, or impair the Service;
(g) reverse engineer any aspect of the Service, or do anything that could lead to the discovery of source code, or bypass or circumvent any mechanisms put in place to block or limit access to any Service, area, or code of the Service;
(h) attempt to bypass any content-filtering techniques we use, or access any feature or area of the Service to which you are not allowed or bypass or ignore instructions that control all automated access to the Service;
(i) use any means not authorised by us to access the Service, extract data or otherwise interfere with or modify the rendering of Service pages or functionality; or
(j) use the Service for any illegal or unauthorised purpose, or participate in, encourage, or promote any action that is in violation of these User Terms.
7.1 Unless otherwise specified in writing by us, the Service and all content and other materials contained in it including, without limitation, the Cirkay logo (or that of any of Eluvio Inc and/or any applicable third party licensor) and all designs, text, graphics, pictures, information, data, software, sound files, other files, and the selection and arrangement thereof (collectively, Service Content), are the exclusive property of Push or our affiliates, licensors, or creators as applicable.
7.2 Regardless of anything in these User Terms to the contrary, the Service may include software components provided by us, our affiliates, or a third-party that are subject to other licence terms, in which case those licence terms shall govern such software components.
7.3 The Cirkay logo and any Cirkay product or names, logos or slogans that may appear on the Service are trademarks of Push or our affiliates and may not be reproduced in any way, directly or indirectly and in whole or in part, without our prior written agreement. You may not use any metatags or other “hidden text” utilising “CIRKAY” or any other name, trademark, product or service name of Push or our affiliates without our prior written agreement to such use. In addition, the look and feel of the Service, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark or trademark of Push and may not be reproduced in any way, directly or indirectly and in whole or in part, without our prior written agreement. All other trademarks, product names and Push names, logos or other intellectual property contained in or on the Service are the property of their respective owners and may not be reproduced in any way, directly or indirectly and in whole or in part, without the prior agreement of the applicable rights holder.
7.4 Reference to any products, services, software or other information by name, trademark, developer, creator, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
8. Links to the Service
We grant you no right to create any text hyperlink to the Service. Without our prior written agreement, you may not use, reproduce or imitate our logo or any other image, text or other representation to link to the Service. Further, you may not use, frame, or employ framing methods to enclose any Push trademark, logo, or other proprietary material, including pictures seen on the Service or any part of it, written content, or the style or design of any page or form contained on a page, on the Service without our prior express written agreement.
9. Third Party Services
9.1 The Service may contain links to third-party websites and products/applications. We will not always notify you that you have left our Service and that you will be subject to the terms and conditions of that relevant third-party website or application if you click on such a link. Such third-party websites and applications are not under our control nor will we be liable for the content of any third-party websites or applications.
9.2 Such third-party websites and applications are not approved, monitored or endorsed by us, nor do we make any representations with respect to these websites or applications, or their products or services.
9.3 Your use of such links and subsequent use of such third-party websites and applications shall be at your own and we shall not be liable for any of your actions, third-party actions and any loss or damages arising as a result of such actions.
9.4 You should review all applicable agreements and policies, including privacy and data gathering practices, of any third-party websites or applications and if you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products..
9.5 Notwithstanding anything to the contrary in these User Terms, the Service may include software components provided by us or our affiliates or a third party that are subject to separate license terms, in which case those license terms will govern such software components. In such an event, you must comply in full with the terms of any such licence.
10. Member Information and Copyright
10.1 You are solely responsible for your use of the Service and for any personal material you provide, including compliance with applicable laws, rules, and regulations. We take no responsibility for such personal material posted or listed via the Service.
10.2 Should you decide to make available any personal material on or through the Service (where we choose to offer any such funsctionality), you grant us a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, modify, and display any text, content, files, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content that you submit or post on or through the Service or through tools or applications we provide for posting or sharing such content for our lawful business purposes, including to provide, promote, and improve the Service.
10.3 You represent and warrant that you own, or have obtained, all rights, licences, consents, permissions, and/or authority to grant the rights granted in these User Terms for any personal material that you submit, post or display on or through the Service. You agree that such personal material will not contain material subject to copyright or other proprietary rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant us the licence described above.
10.4 We reserve the right to remove content without prior notice. In such an event, we will take down items in response to formal infringement claims and will terminate the infringing Member’s access to the Service if the Member is determined to be a repeat infringer.
10.5 If you believe that your content has been copied in a way that constitutes copyright infringement or infringement of any other intellectual property right, please report this by contacting us at [email protected].
10.6 Formal intellectual property infringement claims regarding content on the Service must include:
(a) a written communication delivered to the email address specified in clause 10.5;
(b) if applicable – a physical or electronic signature of someone authorised to act on behalf of the rights holder;
(c) identification of the protected work(s) allegedly infringed;
(d) identification of material claimed to be infringing, reasonably sufficient to enable us to identify the material;
(e) information reasonably sufficient enabling us to contact the complaining party;
(f) a statement that the “complaining party believed in good faith that use of the accused material is not authorised by the rights holder, its agent or the law” and;
(g) a statement that the information in the notice is accurate and, if appropriate, the complaining party is authorised to act on behalf of the rights holder.
11. Assumption of Risk
11.1 You accept and acknowledge:
(a) NFT/blockchain-based asset prices are highly volatile. Price fluctuations in other digital assets could have a considerable and negative impact on values, which may also be subject to severe price volatility. We make no guarantees in relation to any such values;
(b) you understand and acknowledge that we will not be held liable for any communication failures, disruptions, mistakes, distortions, or delays that you may encounter when using any Pass or NFT, regardless of how they occurred;
(c) current legislation and regulations governing blockchain technologies and tokens is uncertain, and new legislation and regulations may materially adversely affect the development of the Service or any product made available via the Service therefore affecting utility;
(d) we do not store, send, or receive Passes (and/or NFT’s) or similar through our Service as all such products exist solely as a result of the ownership record maintained on the supporting blockchain. Any such product transfers take place on the supporting blockchain;
(e) there are risks involved with obtaining any generated content, such as the risk of purchasing counterfeit assets, incorrectly labelled assets, assets susceptible to metadata decay, assets on smart contracts with flaws, and assets that may become untransferable. Push maintains the right to conceal collections, contracts, and assets that are affected by any of these or other issues. Products on the Service may become unavailable. Under no circumstances will any inability to access your assets on the Service constitute grounds to commence proceedings against us; and
(f) it is your obligation to decide whether any taxes apply to your transactions; we are not responsible for establishing the taxes that apply to such transactions conducted via the Service.
12. Protection and cover you give to Us
12.1 If you use or misuse the Service or any asset we provide to you via the Service, or any personal material; or breach these User Terms or the rights of a third party – you agree to cover us in respect of that and to compensate and hold us harmless (and our affiliates, agents, any relevant third-parties and assigns), from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, legal fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing our rights under this clause and insurance), of every kind and nature.
12.1 You must immediately notify us of any third party making a claim of which you become aware and cooperate with us in defending such third-party claims. You further agree that we shall have control of the defence or settlement of any third-party claims and that you shall not take any action to settle, defend or admit the third-party claim without our prior written agreement.
13. Our disclaimers in respect of your use of the Service
13.1 Except as expressly provided to the contrary in writing by Push, the Service and all content contained within the Service, any Pass, NFT or other product(s) listed therein are provided by us or by our third party providers without warranties or conditions of any kind, either express or implied by law. We make no statement or promise and provide no warranty, that the Service or any product contained on the Service will: (a) meet your requirements; (b) be available on an uninterrupted, timely, secure, or error-free basis; or (c) be accurate, reliable, complete, legal, or safe.
13.2 Push will not be liable to you for any other warranties, terms or conditions, express or implied, and whether or not as to description, suitability, quality, title and non-infringement as to the Service or any content contained in the Service. We make no statements or promises, nor do we represent or warrant to you that content on the Service is accurate, complete, reliable, current or error-free – and you will not be able to claim from us for any loss of any kind that results from any action taken or taken in reliance on material or information, contained on the Service. While we make all reasonable endeavours to make your access to and use of the Service safe, we cannot and do not make any statements or promises (or any representation or warranty) that the Service, its content and any products or items listed on our Service or held within it are free of viruses or other harmful components.
13.3 We cannot guarantee the security of any data that you disclose online. In accessing our Service, you accept the inherent security risks of providing information and dealing online and will not hold us responsible for any breach of security unless it is due to our negligence or wilful default.
13.4 We will not be responsible or liable to you for any claim or for loss or damage of any kind that you may incur as a result of using any product made available to you on the Service, including without limitation, any arising from: (a) user error such as forgotten passwords, incorrectly constructed transactions, or mistyped addresses; (b) server failure or data loss; (c) corrupted Wallet files; (d) unauthorised access to applications; (e) any unauthorised third-party activities, including without limitation the use of viruses, phishing or other means of attack against the Service or its contents, save to the extent we set out in clause 14.
13.5 We do not guarantee that we or any of our affiliates or other connected parties can effect or will effect the transfer of title or right in any NFTs or other similar assets subject to a transfer on or via the Service.
13.6 We are not responsible for any loss or damage occurring due to vulnerability or any kind of failure, abnormal behaviour of software, blockchains or any other features of the Service, late reporting by developers or representatives (or no report at all) of any issues with the blockchain supporting the Service including forks, technical node issues or any other issues.
13.7 You acknowledge and agree that, other than as we set out in clause 14, access to and use of the Service, any Pass, NFT or similar product made available to you via the Service (or third party sites and products you may use or access) are at your own discretion and at your own risk.
13.8 Nothing in these User Terms shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence (or for any other liability which cannot be excluded or limited under applicable laws).
14. Limitation of Liability
14.1 We will in all circumstances, only be liable to you for monetary damages up to the amount set out in clause 14.2 below. We will not have any liability to you or to any third party for any types of loss or damage you may suffer, whether arising directly or indirectly from these User Terms, the Service, any item or product made available to you by us or by any third party with whom you may have engaged or agreed terms of service or supply via the Service; even if foreseeable and even if we have been advised of the possibility of such loss or damage.
14.2 Subject always to clause 13.8, in no event shall the maximum aggregate liability of Push arising out of or in any way related to these User Terms, the access to and use of the Service or any item(s) or product(s) purchased on or enabled via the Service, exceed the greater of (a) £100 or (b) the amount received by us in respect of the purchase or other acquisition of the item(s) or product(s) that are the subject of the claim.
15. Cessation of the Service or Modifications to the Service or to any of these User Terms
15.1 We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Service (or any features or parts of it) or suspend or discontinue any product or item (or transaction) at any time and without liability for the same.
15.2 We reserve the right to change or modify these User Terms at any time and at our sole discretion. This may include making changes to reflect any guidelines, standards and requirements of Eluvio Inc that may be posted on https://eluv.io from time to time.
15.3 If we make changes to these User Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Service or updating the “Last Updated” date at the beginning of these User Terms. By continuing to access or use the Service, you confirm your acceptance of the revised User Terms (and all of the terms and conditions incorporated therein by reference).
15.4 We encourage you to review the User Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Service. If you do not agree to the revised User Terms, you must cease your access or use of the Service.
Notwithstanding anything contained in these User Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Service at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you arising from any such termination.
The following clauses will survive any termination of these User Terms and/or the termination of your Member account: 1.4 (how we may use your personal information), 2 (information about us and how to contact us), 7 (ownership), 10 (member information and copyright), 13 (our disclaimers in respect of your use of the Service), 14 (limitation of liability), 17 (survival), 18 (severability), 20 (no waiver), 21 (entire agreement), 22 (third party rights) and 23 (law and jurisdiction).
Each of the provisions of these User Terms operates separately and independently. If any court or relevant authority decides that any of them are invalid or unlawful, the parties intend that these be struck out and the remaining provisions will remain in full force and effect.
19.1 We may transfer our rights and obligations under these User Terms to another entity or individual, without the need to procure your prior written consent. We will contact you to let you know if we plan to do this.
19.2 You are unable to assign or transfer in any way any of your rights and obligations under these User Terms to any other entity or individual, without our prior written consent.
20. No Waiver
If we do not insist immediately that you do anything you are required to do under these User Terms, or if we delay in taking steps against you in respect of you breaking these User Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
21. Entire Agreement
22. Third Party Rights
A person who is not a party to these User Terms shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms and conditions.
23. Law and Jurisdiction
These User Terms and the agreement between you and Push shall be exclusively governed by and construed in accordance with the laws of England and Wales, and the English Courts shall have exclusive jurisdiction.