Last updated: February 15, 2019
The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1 “Authorized User” means you and your employees, contractors, or agents authorized by you to access and use the Platform pursuant to the terms and conditions of this Agreement. You are responsible for the acts and omissions of your Authorized Users and any other person who accesses and uses the Platform using any your or any of your Authorized Users’ access credentials.
1.2 “Confidential Information” means: (i) with respect to Blockdaemon, the Platform, the Website, the Aggregate Data, the Usage Data, and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, products, services, or data; and (ii) with respect to you, your Nodes, the Customer Materials and any non-public information or material regarding you, your legal or business affairs, financing, employees, customers, properties, or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
1.3 “Customer Materials” means any data, information, and other materials that you or your Authorized Users submit to the Platform, including, without limitation, the personal information (such as name, email address, and other identifying information) of you and your Authorized Users.
1.4 “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Platform and Website as Blockdaemon may make available to you from time to time, whether in a written or electronic form.
1.5 “Fees” means the fees we charge for your access to and use of the Platform, on a per Node per month basis, as listed on our price list found at https://blockdaemon.com/?section=pricing.
1.6 “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform or the Website, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform or Website to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Platform or Website.
1.7 “Node” means an individual database instance in a blockchain containing a copy of the full ledger of such database, and capable of validating transactions within such database.
2. ACCESS AND USE.
2.1 Access to the Platform and Website.
Blockdaemon hereby grants you and your Authorized Users a limited, non-exclusive, non-transferable (except as permitted under Section 13.2 below) right and license, without the right to grant sublicenses, to access and use the Platform and Website (and any Documentation that Blockdaemon may provide in connection therewith) to develop, launch, and manage Nodes solely for your own internal, business purposes, subject to the terms and conditions of this Agreement.
2.2 Modifications. We reserve the right to modify the Platform or Website from time to time by adding, deleting, or modifying features to improve the user experience or for other business purposes. We further reserve the right to discontinue any feature of the Platform or Website or portion thereof at any time during the Term at our sole and reasonable discretion.
2.3 Service Levels and Support. During the Term, Blockdaemon, or our contractors, shall host the Platform and Website, periodically monitor the Platform and Website to optimize performance thereof, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers. Blockdaemon uses commercially reasonable efforts to respond to support questions submitted through the Platform, Website, or by email to firstname.lastname@example.org.
2.4 Restrictions on Use. You will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Platform; (ii) allow an Authorized User to share with any third party his or her access credentials; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or Website; (iv) modify, adapt, or translate the Platform or Website; (v) make any copies of the Platform or Website; (vi) resell, distribute, or sublicense the Platform or Website or use the Platform or Website for the benefit of anyone other than you or your Authorized Users; (vii) remove or modify any proprietary markings or restrictive legends placed on the Platform or Website; (viii) use the Platform or Website in violation of any applicable law, rule, or regulation, or in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (ix) access or use the Platform or Website to collect any market research for a competing business; (x) use any robot, spider, scraper, or other automated means to access the Platform or Website for any purpose without our express written permission, or (xi) introduce, post, or upload to the Platform or Website any Harmful Code. We have the right to monitor your compliance with this Section 2 and your use of the Platform and Website generally.
3. TERM; TERMINATION.
3.1 Term. This Agreement commences at the time you click “ACCEPT” and continues in full force and effect until terminated. The term of each subscription to the Platform commences at the time of your initial purchase (regardless of the number of Nodes purchased), and continues for a period of one (1) year (each, a “Subscription Term”). Thereafter, the Subscription Term automatically renews on a month-to-month basis. Your subscription may be cancelled at any time during the Subscription Term upon written notice to Blockdaemon in accordance with Section 4.2 below. If you purchase additional Nodes during a Subscription Term, your access to and use of such Nodes shall operate under your original Subscription Term, and payment for such Nodes shall be pro-rated for any partial month during which you purchase such Nodes. If you have entered into a separate order form (each, an “Order”) with Blockdaemon for your Node subscription(s), such Order may set forth an alternative Subscription Term, fees, or payment terms; provided, however, that no Order shall be effective unless signed by Blockdaemon. In the event any term of this Agreement conflicts with any term in an executed Order, the term in the Order shall govern.
3.2 Termination. Subject to your right to cancel a subscription at any time as provided in Section 4.2, you or Blockdaemon may terminate this Agreement at any time, for any reason, upon thirty (30) days’ advance written notice to the other. In addition, your or Blockdaemon may terminate this Agreement upon written notice to the other if the other party materially breaches this Agreement and fails to cure such breach within ten (10) business days of its receipt of such written notice (for “Cause”). In addition, Blockdaemon may terminate this Agreement for Cause immediately upon written notice, without a cure period, if (i) you use the Platform or Website in any manner that violates applicable law, (ii) your Nodes or your use of the Platform or Website infringes the intellectual property or privacy rights of a third party, (iii) you transmit or attempt to transmit any Harmful Code to the Platform or Website, or (iv) you use the Platform or Website in any manner that imposes or may impose an unreasonable burden or load on the Platform or Website or on Blockdaemon’s infrastructure. Blockdaemon can also terminate this Agreement under the limited circumstances set forth in Section 9.2 below.
3.3 Effect of Termination. Upon termination of this Agreement for any reason, you shall immediately cease all access to and use of the Platform; provided, however, that for a period of five (5) days following any termination, Blockdaemon shall permit you to access the Platform solely for the purpose of downloading your Customer Materials. After such five (5) day period, Blockdaemon has no obligation to return to you any Customer Materials or grant you any further access to the Platform. If this Agreement is terminated by Blockdaemon for convenience or under Section 9.2, or terminated by you for Cause, Blockdaemon will issue you a refund for any Fees that you have pre-paid, which refund will be pro-rated to the effective date of termination. If Blockdaemon terminates this Agreement for Cause, or if you terminate this Agreement for convenience, you shall not be entitled to such a refund, subject to Section 4.2 below.
3.4 Survival. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 3.3 (“Effect of Termination”), this Section 3.4 (“Survival”), Section 5 (“Intellectual Property”), Section 6 (“Confidentiality; Feedback”), Section 7 (“Representations and Warranties; Our Disclaimer”), Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), Section 10 (“Binding Arbitration”), Section 11 (“Class Action Waiver”), Section 12 (“Equitable Relief”), and Section 13 (“General Provisions”).
4.1 Purchasing Nodes. You or your Authorized Users may purchase any number of Nodes to be developed, launched, and managed via the Platform. Fees are based on a per Node per month subscription, as set forth on our price list.
4.2 Recurring Payments. Unless otherwise provided in an Order, at the time of your first purchase on the Platform you will be required to provide valid payment information. Unless otherwise provided in an Order, by purchasing a subscription to a Node, you acknowledge and agree that each Node has an initial and recurring payment charge at the then-current per Node per month Fee, and you agree that Blockdaemon, or its third-party payment processor, may submit monthly charges to your chosen payment method without further authorization from you, unless and until you provide written notice (via email or through the Platform) to Blockdaemon that you wish to cancel your subscription or change your payment method. You may cancel a subscription on a per Node basis at any time upon notice to Blockdaemon, and the effective date of such cancellation shall be the last day of the month during which you provide such notice. You further accept responsibility for all recurring charges prior to cancellation, including, where applicable, any charges processed by Blockdaemon or its third-party payment processor after the expiration date of your payment card.
4.3 Payment Method. You agree to keep a valid payment card on file with Blockdaemon at all times during the Subscription Term. If your payment card expires or if you need to change the payment card on file at any time, you must notify Blockdaemon immediately.
4.4 Fees. All Fees are in U.S. dollars and exclusive of all sales, use, and other applicable taxes, all of which shall be for your account. Blockdaemon shall automatically charge you any such taxes and indicate such taxes as a separate line item in your monthly payment receipt. Unless expressly provided in this Agreement, all Fees are non-refundable.
4.5 Suspension for Non-Payment. In addition to Blockdaemon’s other rights and remedies under this Agreement and at law, Blockdaemon may suspend your access to the Platform if we are unable to process any payment due to an expired or invalid payment card. We will use commercially reasonable efforts to notify you and provide you an opportunity to provide updated payment card information prior to suspending access.
5. INTELLECTUAL PROPERTY.
5.1 Blockdaemon Materials. The Platform and Website may contain material, such as software, text, graphics, images, designs, sound recordings, audiovisual works, and other material provided by or on behalf of us (collectively referred to as the “Content”). The Content may be owned by us or licensed to us by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. The trademarks, service marks, and logos used and displayed on the Platform or Website may be registered and/or unregistered trademarks or service marks of ours of our licensors (collectively, the “Trademarks”). Nothing on the Platform or Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Trademarks inures to the benefit of us or our licensors.
5.2 Customer Materials. Subject to the terms and conditions of this Agreement, you hereby grant Blockdaemon a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Materials solely for the purpose of providing you with access to and usage of the Platform and Website hereunder. Upon expiration or termination of the Agreement, we may retain an archival copy of the Customer Materials kept in the normal course of business or for purposes of complying with Applicable Law, provided that they will remain subject to the confidentiality provisions herein.
5.3 Aggregated Data. We monitor the performance and use of the Platform and Website by you and your Authorized Users, and we collect data in connection therewith, including, without limitation, date and time that you access the Platform and Website, the portions or pages of the Platform and Website visited, the frequency and number of times such pages are accessed, and other usage data (the “Usage Data”). We may combine this Usage Data with other data (including Customer Materials), and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the “Aggregate Data”). Aggregate Data does not identify you or any individual. Once Company Materials are aggregated and anonymized, they are no longer deemed Company Materials hereunder and are considered Aggregate Data. You hereby agree that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data for any lawful purpose.
5.4 Ownership. As between the Parties, all right, title, and interest in and to the Platform and Website, the Documentation, the Usage Data, and the Aggregate Data, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, are and will remain the sole and exclusive property of Blockdaemon. Other than the limited license granted in Section 2 with respect to your right to access and use the Platform, Website, and the Documentation, nothing in this Agreement shall be construed as granting you or your Authorized Users any rights or licenses in or to the Platform, Website, or the Documentation, all of which are expressly reserved by Blockdaemon. Subject to Section 5.1 and Section 5.2, all right, title, and interest in and to Customer Materials, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, will be and remain Customer’s sole and exclusive property.
6. CONFIDENTIALITY; FEEDBACK.
6.1 Confidentiality. At all times the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
6.2 Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 6.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in any act which violates Section 6.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 6.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
6.3 Feedback. During the Term, you or your Authorized Users may elect to provide us with feedback, comments, and suggestions with respect to the Platform and Website (“Feedback”). You hereby agree that Blockdaemon will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback in perpetuity without compensation or attribution to you or any Authorized User.
7. REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER.
7.1 Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) its performance under this Agreement shall comply with all applicable laws, rules, and regulations, including, without limitation, all applicable national and international laws, regulations, notices, and guidelines relating to information privacy. You further represent and warrant to Blockdaemon (a) that you have obtained and shall obtain all necessary rights and consents to provide Blockdaemon with the Customer Data including, with respect to any personal information contained therein, the express consent from any applicable individuals to disclose and transfer such information to Blockdaemon for the purposes contemplated herein, and (b) that the Customer Data and the Nodes do not and shall not infringe, misappropriate, or otherwise violate the rights of any third party including, without limitation, intellectual property rights.
7.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM, WEBSITE, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED BY BLOCKDAEMON HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER BLOCKDAEMON NOR OUR LICENSORS MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT BLOCKDAEMON AND OUR LICENSORS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
8. LIMITATION OF LIABILITY.
9.1 Indemnification by you. You will indemnify, defend, and hold Blockdaemon, our affiliates, our licensors, and hosting providers, and our and their respective Representatives harmless from and against any and all damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by any of such indemnified parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from or relating to (i) your or any of your Authorized Users’ breach or violation of this Agreement; (ii) your Nodes; or (iii) your or any of your Authorized Users’ gross negligence or willful misconduct.
9.2 Indemnification by Blockdaemon. Blockdaemon will indemnify, defend, and hold you and your Representatives harmless from and against any and Losses incurred by any such indemnified parties in connection with any third-party Claim (i) arising from Blockdaemon’s gross negligence or willful misconduct, or (ii) alleging that you or your Authorized Users’ access to and use of the Platform or Website in compliance with this Agreement infringes or misappropriates any third-party intellectual property rights (an “Infringement Claim”). In the event that we reasonably determine that the Platform or Website is likely to be the subject of a third-party Infringement Claim, we will have the right (but not the obligation), at our own expense, to: (i) procure for you the right to continue to use the Platform or Website as provided in this Agreement; (ii) replace the infringing components of the Platform or Website with other components with equivalent functionality; or (iii) suitably modify the Platform or Website so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, we may terminate this Agreement without further liability to you. Notwithstanding the foregoing, we are not obligated to indemnify, defend, or hold you or your Representatives harmless with respect to any third-party Infringement Claim to the extent the Infringement Claim arises from or is based upon (i) your or your Authorized Users’ use of the Platform or Website not in accordance with the Documentation or this Agreement; (ii) any unauthorized modifications, alterations, or implementations of the Platform or Website made by or on behalf of you (other than by us); (iii) use of the Platform in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iv) use of the Platform or Website in a manner or for a purpose for which it was not designed. This Section 9.2 states your sole and exclusive remedy, and our sole and exclusive liability, regarding any third-party Infringement Claim.
9.3 Procedure. The indemnification obligations set forth in Section 9.1 and Section 9.2 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim, provided, however, that any failure of the indemnified Party to provide prompt written notice pursuant to this Section 9.3 shall excuse the indemnifying Party only to the extent that it is prejudiced thereby; (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s approval.
10. BINDING ARBITRATION.
In the event of a dispute arising under or relating to this Agreement or the Platform or Website (each, a “Dispute”), either Party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other Party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the Parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each Party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The Parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The Parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 12 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
11. CLASS ACTION WAIVER.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
12. EQUITABLE RELIEF.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.
13. GENERAL PROVISIONS.
13.1 External Sites. The Platform and Website may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
13.2 Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
13.3 Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
13.4 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard for choice of law provisions thereof.
13.5 Independent Contractors. The Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.
13.6 Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
13.7 Force Majeure. Except for your obligations to pay any Fees and other amounts due hereunder, neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.
13.8 Third-Party Beneficiaries. The Parties agree that there are no third-party beneficiaries under this Agreement.
13.9 Publicity. During the Term, we may refer to you as a user of the Website, and/or a customer or user of the Platform. In connection therewith, we may use your corporate name, trade name, trademarks, and corporate logos. Any goodwill arising from the use of such name and logos will inure solely to your benefit. All other publicity regarding this Agreement will be mutually coordinated and approved in advance in writing by the Parties.
13.10 Notices. Any notice under or in connection with this Agreement 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 the address for notice that you provide when registering for the Platform or have provided through the Website, and the then-current address of Blockdaemon’s corporate headquarters set forth on Blockdaemon’s corporate website at www.blockdaemon.com (in the case of notice to Blockdaemon). Additionally, Blockdaemon may notify you via the e-mail address that you provide when registering for the Platform or have provided through the Website. You may change your notice address by written notice to Blockdaemon, as described above.
13.11 Export. You will not export or re-export, either directly or indirectly, the Platform or Website, or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, you will not permit Authorized Users or any third parties to access or use the Platform or Website in violation of any United States export embargo, prohibition, or restriction.
13.12 Complete Understanding. This Agreement, together with all Orders (if any) that you have executed with Blockdaemon, constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. Headings are for convenience only and shall not be used to limit or interpret the meaning of any of the provisions of this Agreement. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND THE ENTITY TO THE TERMS OF THIS AGREEMENT.
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