By downloading and using the Product(s) within you agree to be bound to and by the terms and conditions contained herein. You further understand and accept that all of our Product(s) offered in a Sandbox Marketplace are intended exclusively for testing various aspects of the Product(s) before they are officially launched commercially and offered to the public at large. ALL PRODUCT(S) ARE OFFERED EXCLUSIVELY AS ISAND ARE OPERATED BY THE USER AT THE USER’S SOLE AND EXCLUSIVE RISK.
1. License Grant. Subject to your compliance with this License, we grant you a non-exclusive, non-transferable, non-sublicensable, limited license to use and test the Product(s), including certain software code portions and the documentation relating thereto or for the limited purposes of evaluating whether you wish to utilize the commercial version of the Product(s). The Product(s) shall not be used in any other manner or for any other purpose during the Term of this License or thereafter.
2 Restrictions. Without our prior written consent, you agree to not:
2.1.
make any modifications to the Product(s);
2.2.
adapt, translate, reverse engineer, decompile, disassemble or create derivative works based on the Product(s), or any part thereof;
2.3.
make the Product(s), or any part thereof, available to any third-party;
2.4.
make any copies of, reproduce or transfer any portion of the Product(s), except for a single copy for purposes of backup, testing and archiving;
2.5.
alter, remove or suppress in any manner any copyright, trademark or other notices displayed by the Product(s);
2.6.
use the Product(s) to provide any services directly or indirectly, including, without limitation to any third-party or to function as an application service provider; or
2.7.
license, rent, sell, loan, lease, pledge, offer as security, transfer or assign the Product(s), any of the outputs or results of the use of the Product(s), or any of the rights granted to you hereunder, to any other person.
3. Altering License Terms. We reserve the right to amend, alter, or otherwise change this License at any time without notice to you. We shall use reasonable efforts to communicate all changes to this License before or as the changes are published, once published you are responsible for becoming familiar with the then current license. The most recent and published version of this License shall supersede any previously published or contemporaneous drafts, however they may have been accessed or available, of this License. In the event of any conflict between the terms and conditions contained within this License and any other documentation you receive from us the following order of precedence will apply: (a) any amendment, confidentiality agreement or other specific legal document entered into separately by and between you and ourselves; (b) the most current published version of this License; and (c) the Product(s)’ description in the Sandbox Marketplace.
4. Term & Termination. The full force and effect of the License will continue so long as the Product(s) are offered in the Sandbox or for thirty (30) days following your initial access-and-use date of the Product(s), whichever is shorter (the “Term”). Upon this License’s expiration, determined by the availability of the Product(s) in the Sandbox, you shall immediately cease your use of the Product(s) and, if applicable, remove it from any and all environments or interfaces that you control, manage, supervise, own or otherwise have proper authority over (“Your Environment(s)”).Altering License Terms.
4.1.
Termination. Termination by you may be made at any time by (1) no longer interacting with our Product(s) and/or (2) by removing our Product(s) from your Environment(s) when applicable.
4.1.1
Termination by Us. We terminate this License if you: (1) are in material breach of any of its obligations under this License and the breach is not rectified, if it can be rectified, within thirty (30) business days after the receipt of a request in writing to remedy such breach; (2) your account with the Sandbox Marketplace you used to access our Product(s) is no longer in good standing with that marketplace; (3) you are reasonably believed to be or found guilty of fraudulent or dishonest dealings in connection with the performance under this License; (4) you breach any section of this License.
5. Confidentiality. Each party may during the term of the this License, have access to or be entrusted with, technical, proprietary, sales, legal, financial and other data and information with respect to the affairs and business of the other party or a third-party, including information received by the party from any third-party subject to obligations of confidentiality towards said third-party, all of which data and information, whether documentary, written, oral or computer generated, shall be deemed as confidential information (“Confidential Information”).
5.1.
Confidential Information shall not include information which: (1) is or becomes available in the public domain or is generally known in the industry through no fault on the part of receiving party; (2) is or becomes available to the receiving party on a non-confidential basis from a third-party source that, to the receiving party’s knowledge is not prohibited from disclosing such information; (3) was known by or in possession of the receiving party on a non-confidential basis before such disclosure by the disclosing party; or (4) was or is independently developed by the receiving party without use of or reference to any of the disclosing party’s Confidential Information.
5.2.
Duties of the Parties. Each party agrees that it shall protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care that it would use to protect its own similarly-valued proprietary and confidential information (but in no event less than a reasonable degree of care) and not disclose the Confidential Information to any person or entity, except its and its Affiliates employees, officers, directors, independent consultants, agents, professional advisers, potential lenders, and/or credit-rating agencies (collectively, “Representatives”) who: (1) have a reasonable need to access the Confidential Information for the purposes contemplated under this License, (2) are informed of the confidential nature of the Confidential Information, and (3) are subject to confidentiality duties or obligations to the receiving Party that are comparable to the terms hereunder; and (4) be responsible for any violation of this Section 7 by its Representatives. The Parties shall not have any additional rights related to the other Parties’ Intellectual Property unless otherwise provided under this License.
6. Open Source Software. Our Product(s) may contain or be provided with Open Source Software that is then identified within the Product(s) as Open Source. This License is only intended to apply to the Open Source Software contained within our Product(s): (1) to the extent not prohibited by the license to which the Open Source Software is subject, including without limitation, warranties and indemnification, (2) and except to the extent required by the license to which the Open Source Software is subject, in which case the terms of such license will apply in lieu of the terms of this License with respect to such Open Source Software, including without limitation, any provisions governing attribution, access to source code, modification and reverse engineering.
7. Intellectual Property. The Intellectual Property (“IP”) rights of this License are as follows:
7.1.
Our Rights. Except for the licenses expressly granted in this License, we shall remain the sole and exclusive owner of all right, title and interest in and to, all pre-existing IP owned by us prior to the date you downloaded the Product(s). With respect to our IP, our Product(s), and specifications thereof, we shall be responsible for procuring any IP licenses necessary for us to fulfill our obligations under this License from any applicable third-parties regarding our sub-license obligations.
7.2.
Your Rights. You shall retain all right, title and interest in and to any IP you create, derive, or otherwise generate within our Product(s) and grant us a non-exclusive royalty-free license to use such information only as needed to provide you the ordered service. During the Term, we may elect to seek feedback, comments, and suggestions ("Feedback") from you along with any aggregated details derived from you or your Authorized User’s use of our Product(s) (“Service Performance Data”). In using our Product(s) and/or responding to requests for Feedback you acknowledge and agree that we will own any and all Service Performance Data and have a royalty-free license over anonymized Feedback and are free to use, reproduce, disclose, and otherwise exploit any and all such Feedback in perpetuity without compensation or attribution to the you. For clarity, Service Performance Data includes any data that is derived from the use of the Services that does not directly or indirectly identify you, your Authorized Users, Affiliates, any end users, or any natural person and includes data such as volumes, frequencies, and Service performance data. Nothing in this Section gives us the right to identify you as a source of any Service Performance Data.
8. Publicity. By using our Product(s) for any professional or business purposes you grant us the non-exclusive, royalty-free right to use and display your company name and/or logo as part of our marketing materials and identification of customers.
9. No Disparagement or Misappropriation. At no time during the Term, as defined in Section 4 of this License, and for a period of two (2) years after the termination of the Agreement, neither party will make nor permit others under their respective authority, supervision or other control or influence to make (1) any statements or take any other actions to otherwise disparage, defame, sully, or compromise the other’s goodwill, name, brand or reputations or those of our affiliates; nor (2) take any action that would likely injure, hinder, or otherwise interfered with the other’s business relationships.
10. Representations and Warranties. SANDBOX PRODUCTS ARE PROVIDED BY US UNDER THIS LICENSE “AS IS”. EXCEPT WHERE EXPRESSLY SET FORTH OTHERWISE IN THIS SECTION 8 OF THE LICENSE WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY PRODUCT(S) PROVIDED HEREUNDER, AND ALL SUCH OTHER WARRANTIES ARE DISCLAIMED TO THE FULLEST EXTENT AS PERMITTED BY LAW.
11. Privacy, Data Protection, and Information Security.
11.1.
Privacy and Data Protection. Each party is responsible for maintaining compliance with their respective and applicable data protection rule(s), regulation(s), directive(s), law(s) or other similar applicable guidance(s) for the Term of this License. For the duration of this Term we will adhere to the respective rules, regulations, directives, and laws regarding data security that apply to the European Union, its member state of Ireland, and those issued by any of our other applicable and binding authorities. For further information you may consult our privacy policy (https://www.blockdaemon.com/privacy-policy).
11.2.
Information Security. You are solely responsible for the information security of any information that resides in Your Environment(s) and that of any third parties employed by you who access and use the Product(s) on your behalf. We are not liable for any data tampering, loss, unauthorized access, or similar such acts by any party, intentional or unintentional. Accordingly, we recommend that you utilize commercially reasonable security practices in connection with the Product(s) and any sandbox environment in which they are offered.
11.3.
Data Back-up and Preservation. You are expressly and solely responsible for creating, maintaining, securing or similar action related to any and all backups, copies, documents, and other similar critical data you provided to the Sandbox Product(s). As part of our offering of the Product(s) in the Sandbox we will periodically be resetting and wiping our Product(s) server(s), key materials, and other similar infrastructure. While we will make reasonable efforts to notify you before each reset, we cannot guarantee notice nor range of impact. We therefore recommend that you utilize commercially reasonable efforts to regularly back-up, maintain, and secure your critical data.
12. Indemnity. Each party shall defend, indemnify, and hold harmless the other party (including its own, and its Affiliates’, directors, officers, employees, and permitted sub-licensees) from and against all claims, losses, liabilities (including settlement and judgements), and expenses (including attorney’s fees, expenses and court costs) that one party may suffer from any claim of infringement or alleged infringement arising from or relating to its usage of the other party’s pre-existing IP under this License (“Infringement Claim”). The party subject to an Infringement Claim will give the other party: (1) prompt written notice of such Infringement Claim, and (2) reasonable assistance, information, and authority (at the indemnifying Party’s cost) to defend or settle such Infringement Claim prior to the settlement or the final judgment; provided that no admission of liability shall be made nor any settlement of a claim be entered into without the consent of the indemnified party, not to be unreasonably withheld. In the case of Infringement Claim, the party who provided the IP which is infringing or alleged to be infringing a person's IP may elect in its absolute discretion to: (3) procure for the other party the right to continue using the IP and/or Documentation as the case may be; (4) replace the affected IP and/or documentation as the case may be, or any part thereof, with software and/or documents of equivalent functionality and performance; or (5) modify the infringing IP and/or documentation as the case may be, so that it is no longer infringing provided that the modified software and/or documents are of equivalent or substantially similar functionality to the original infringing software and documentation.
13. Limitations of Liability.
13.1.
Consequential Damages. Except where breaches arise out of a party’s gross negligence, willful misconduct or fraud neither party will be liable for indirect, incidental, special, consequential or punitive damages of any nature whether in contract, tort or otherwise.
13.2.
Limitation of Liability. EXCEPT WITH RESPECT TO BREACHES ARISING OUT OF OUR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD OUR AGGREGATE LIABILITY FOR ALL MATTERS ARISING FORM OR IN CONNECTION WITH THIS LICENSE WHETHER IN CONTRACT, TORT, OR OTHER CLAIMS UNDER THIS LICENSE WILL NOT EXCEED ONE THOUSAND US DOLLARS ($1,000 USD).
14. Miscellaneous.
14.1.
Governing Law. This License will be governed by and construed in accordance with the laws of the Republic of Ireland, without regard for choice of law provisions thereof.
14.2.
Entire License. This License constitutes the entire agreement between the parties hereto and supersedes all existing contracts or agreements, written or oral, between the parties hereto.
14.3.
Additional Terms. No shrink-wrap, click-wrap, click-acceptance, or other terms and conditions not expressed in this License provided with any Product(s)’ materials or any part thereof (“Additional Terms”) will be binding on the parties, even if use of the Product(s) requires an affirmative “acceptance” of such Additional Terms before access to or use of the Product(s), or any part thereof, is permitted. All such Additional Terms will be of no force or effect and will be deemed rejected by you in their entirety. For clarity, the Product Listing and or associated documentation are not Additional Terms subject to this Section unless expressly stated in a writing by us otherwise.
14.4.
Assignment. Unless otherwise provided in this License, this License and the obligations contemplated hereunder are personal to the parties and their Subsidiary or Parent companies when applicable. You shall not have the right or ability to assign, transfer, or subcontract any obligations under this License without the written consent from us except in instances of assignment or transfer of this License in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, or sale of all or substantially all its assets or business). Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this License will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
14.5.
Settlement of Dispute. The parties will attempt to resolve any dispute arising out of or in relation to this License by discussing the dispute in good faith. The exclusive jurisdiction and venue for any action arising out of or relating to the subject matter of this License shall be arbitrated in courts located in the Republic of Ireland.
14.6.
Expenses. Each party is solely responsible for their own costs and expenses incurred in connection with this License.
14.7.
Force Majeure. Except for your obligations to pay any Subscription Fees due for Product(s) rendered prior to a Force Majeure Event, described below, neither party shall be deemed to be in breach of this License or otherwise be liable to the other by reason of any delay in performance or non-performance of any of its obligations under this License to the extent that such delay or non-performance is due to any cause beyond its reasonable control (including but not limited to: fires, earthquake, acts of God, governmental action, strike, lock-out, pandemic, etc.) (“Force Majeure Event”). The party affected by the Force Majeure Event shall promptly give the other party written notice of the nature and extent of the event and the parties shall enter into bona fide discussions with the view of alleviating its effects or to agree upon such alternative arrangements as may be fair and reasonable.
14.8.
Notices. Any notice sent to us under or in connection with this License shall be in writing and shall be sent by confirmed facsimile, nationally recognized (in the country of the sending party) overnight courier or certified mail (return receipt requested) to: (1) the address for notice set forth below, (2) an address otherwise provided by our legal team; or (3) to the then-current address of our corporate headquarters as set forth on our corporate website at www.blockdaemon.com. Additionally, we may notify you via any contact information you have provided to us through your Sandbox Marketplace account(s) used to access our Product(s).
Blockdaemon Ltd
Attn: Legal Department
1 Grants Row
Dublin 2, D02 HX96
Ireland
14.9.
Relationship of Parties. Nothing in this License is intended to, nor will constitute as, nor create a: partnership; joint venture; agency; or other similarly binding relationship between the parties. To the extent either party undertakes or performs any duty for itself or for the other party as required by this License, the party will be construed to be acting as an independent contractor.
14.10.
Third-Parties. Nothing in this License is intended to confer any right or benefit on any third-party.
14.11.
Serverability. f any portion of this License is stricken as invalid, the remaining portions will remain in full force and effect. Failure of either party to exercise any of its rights in a particular instance will not be construed as a waiver of those rights or any other rights for any purpose.
