Last updated: December 19, 2017
This Subscription Agreement (this “Agreement”) sets forth the terms and conditions for the provision of access to the Platform (defined below) by Blockdaemon Inc. (“Blockdaemon”) for the entity (“Customer”) executing any Order (defined below) to which this Agreement is attached or incorporated by reference. This Agreement may be attached to, or incorporated by reference within, multiple Orders. In the event of any conflict between this Agreement and any Order, the terms and conditions set forth in the Order shall prevail, but only with respect to the Platform access provided under such Order.
The following definitions used in this Agreement have the corresponding meanings. Additional definitions appear throughout the substantive provisions of this Agreement, Order(s), and applicable schedules, exhibits and attachments, if any:
(a) “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.
(b) “Order” means the details regarding Customer’s subscription to use the Platform under this Agreement, including the Fees associated with Customer’s use of the Platform and the number of Nodes initially licensed and permitted to be developed, established and/or managed utilizing the Platform, as set forth in the document attaching this Agreement, or the document executed by Blockdaemon and Customer and referencing this Agreement, and as further described in Section 2 below. Additional Nodes can be licensed through your routine use of the Platform, the purchase of which shall be deemed a separate Order, subject to the terms and conditions of this Agreement.
(c) “Platform” means Blockdaemon’s software Platform offering set forth in the associated Order, including underlying technology.
(d) “Subscription Term” means the length of time Customer is authorized and licensed to access and utilize the Platform, as set forth in the associated Order.
2. Platform and Support.
Blockdaemon shall provide the Platform set forth and described in an Order. The Order shall set forth, as applicable: (a) Subscription Term; (b) the number of Nodes licensed and permitted to be developed and managed utilizing the Platform; (c) the associated Fees and billing contact information; (d) Customer’s method of payment; (e) Customer’s identification and contact information; and (f) any additional information, terms and/or conditions. Customer acknowledges and agree that Customer is solely responsible for decisions made and actions that Customer takes with respect to Customer’s use of the Platform. In connection with Customer’s use of Platform, Blockdaemon will provide e-mail and on-line support, in accordance with Blockdaemon’s policies then in effect. Blockdaemon may also provide links or references to third-party products and/or services in Blockdaemon’s documentation and/or within the Platform. Such third-party products/services are not provided by Blockdaemon, and Blockdaemon is neither liable nor responsible for their functioning, results or effects.
3. Fees and Payment.
All charges and fees set forth in an Order (“Fees”) are due at the time of Customer’s Order and shall be paid in accordance with the payment method selected by Customer during checkout and are non-refundable. All Fees exclude any sales or use taxes associated with this Agreement and any Order, which shall be Customer’s responsibility to pay (other than taxes on Blockdaemon’s income). Customer acknowledges and agrees that Customer is solely responsible for any such sales and use taxes that result from this Agreement and any Order. Unless otherwise set forth in the applicable invoice or Order (in which case Customer shall remit such taxes to Blockdaemon along with the applicable Fees), Customer will remit any such taxes due directly to the appropriate state agency. Customer agrees to act in compliance with all state and federal laws, rules and regulations in connection with any such payment. In the event that Customer’s method of payment is declined or fails following authorization of Customer’s Order, Blockdaemon may assess a late fee at the rate of one and one-half percent (1½%) per month (or the maximum interest allowable under applicable law, if less) on the Fees until satisfaction of payment. Customer is liable for all collection fees and expenses, including reasonable attorney fees, relating to and such Fees.
4. Term and Termination.
(a)Term. This Agreement shall commence on the Effective Date and shall continue for as long as a Subscription Term is in effect. On each anniversary of a Subscription Term, this Agreement and the Order will renew automatically for successive periods equal to the initial Subscription Term, unless either Customer or Blockdaemon provide the other with written notice of termination at least thirty (30) days prior to such anniversary.
(b)Termination. Either party may terminate this Agreement upon prior written notice to the other party if such other party materially breaches any term or condition of this Agreement or an Order and fails to cure such breach within thirty (30) days after receipt of written notice thereof. Blockdaemon may terminate this Agreement, upon written notice to Customer, in the event that Blockdaemon believes, in Blockdaemon’s sole but reasonable discretion, that: (i) any information provided by Customer to Blockdaemon is, or during the Term becomes, materially incorrect; (ii) Customer uses the Platform for any purpose or in any manner that violates any local, state, or federal law or regulation, or any applicable laws or regulations of any foreign government, or that violates or infringes the rights of any third party; (iii) Customer utilizes the Platform to store or transmit any materials that contain software viruses, files, code or other harmful components designed to interrupt, destroy or limit the functionality of the Platform or Blockdaemon’s or any third party’s computer software, systems or infrastructure; or (iv) Customer utilizes the Platform in any manner that imposes or may impose an unreasonable burden or load on the Platform or Blockdaemon’s infrastructure.
(c)Effects of Termination. Upon termination or expiration of this Agreement, all licenses set forth hereunder shall terminate, and Customer’s right to access the Platform shall cease. Notwithstanding the foregoing, provided that Blockdaemon did not terminate this Agreement pursuant to Section 4(b) above, for a period of thirty (30) days following the effective date of termination or expiration of this Agreement, Blockdaemon will permit Customer to access the Platform, solely for the purpose of downloading Customer Materials (as defined below), including any Nodes.
5. Confidentiality and Customer Materials.
(a)Confidential Information. Each party shall keep confidential and shall not use or disclose for any purpose, other than to exercise rights and perform responsibilities hereunder, any information disclosed by the other party to such party in connection with this Agreement, whether disclosed prior to, on, or after the Effective Date, which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information (collectively “Confidential Information”). The foregoing shall not apply to information that: (i) is publicly known at the time of disclosure or subsequently becomes publicly known other than through a breach of this Section 5(a); (ii) is lawfully received from a third party not subject to confidentiality terms with the disclosing party with respect to such information; (iii) was independently developed by the receiving party without reference to the Confidential Information of the disclosing party, as established by the written records of the receiving party, or (iv) is required to be disclosed under a legal requirement, provided that, in the case of subsection (iv), the receiving party shall: (A) give the disclosing party reasonable written notice prior to disclosure pursuant to such requirement (unless prohibited by such requirement); (B) use diligent efforts to limit disclosure and to obtain confidential treatment or a protective order and allow the disclosing party to participate in the proceeding; and (C) comply with any applicable protective order or equivalent. Customer acknowledges and agrees that the pricing terms in any Order and any documentation Blockdaemon provides for or in connection with the Platform (in whatever form), as well as the Platform itself, shall be deemed Blockdaemon’s Confidential Information.
(b)Customer Materials. As between Customer and Blockdaemon, all information and materials provided to by Customer or on Customer’s behalf in connection with Customer’s use of Platform in order to develop, establish and/or manage any Node (collectively, “Customer Materials”), is and shall remain Customer’s property, including any modifications or derivative works thereof and, to the extent applicable, shall be deemed Customer’s Confidential Information. Customer hereby grants Blockdaemon a limited license to use, copy, modify and create derivative works of and from Customer Materials, solely as necessary for Blockdaemon to provide the Platform in accordance with the terms and conditions of this Agreement and any Order. Customer acknowledges that Blockdaemon collects and aggregate anonymous data concerning Platform user behavior, traffic and other interactive information. Such aggregated anonymous data does not identify Customer, and neither can Customer’s identity be derived from such data. Customer agrees that both during and after the Term, Blockdaemon may retain and use all such aggregated anonymous data to improve and market the Platform and Blockdaemon’s services. Customer and Blockdaemon each hereby agree to comply with all applicable national and international laws, regulations, notices, and guidelines relating to information privacy (collectively,“Data Privacy Laws”). To the extent that Customer discloses to Blockdaemon any personal information of, or relating to, any individual, or other information subject to Data Privacy Laws, including in connection with Customer’s use of the Platform, if required by such laws, Customer will notify the affected individual or entity of the intended transfer to Blockdaemon, and obtain specific written consent from such individual or entity to such transfer. Customer agrees that Blockdaemon may list Customer as a customer and/or use Customer’s logo for Blockdaemon’s promotional purposes unless Customer advises Blockdaemon, in writing, that Customer does not consent to such use.
6. License to Platform; Blockdaemon’s Intellectual Property.
Blockdaemon owns all intellectual property rights in and to the Platform. Other than the limited license right to utilize the Platform, nothing contained in this Agreement shall be construed as granting Customer any rights in or to the Platform. Subject to the terms and conditions of this Agreement, Blockdaemon hereby grants Customer a limited scope, nonexclusive, nontransferable license for Customer/Customer’s employees to use and access the Platform for the number of Nodes set forth in an Order, during the associated Subscription Term, for Customer’s business purposes and as may be further described in such Order. Customer may use any documentation (in whatever medium) that Blockdaemon provides with the Platform, solely in connection with Customer’s licensed use of the Platform. Customer shall administer the registration and password access credentials of Customer’s personnel and shall be responsible for any and all use under such credentials. Customer will indemnify, defend, and hold Blockdaemon harmless in connection with any third party claim against Blockdaemon relating to or arising out of Customer’s use of the Platform or relating to any Node. Customer shall not do, attempt to do, nor permit any person or entity to do, any of the following: (a) create or recreate the source code for any underlying software and technology relating to the Platform, or re-engineer, reverse engineer, decompile or disassemble any such underlying software and technology; (b) copy, modify, adapt, translate or create derivative works based upon any such underlying software and technology; (c) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Platform or any associated documentation; or (d) sublicense, sell, lease, rent, timeshare or otherwise transfer, or pledge as security, the Platform or its access thereto. All rights (including all intellectual property rights) to and/or with respect to any items, materials or services relating to the Platform not expressly licensed by Blockdaemon hereunder, are expressly and exclusively retained by Blockdaemon. Blockdaemon shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Platform any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or on Customer’s behalf.
Blockdaemon warrants that Blockdaemon will provide Platform in a professional and workmanlike manner and in accordance with this Agreement and the Order. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE PLATFORM OR SERVICES OR OTHERWISE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, OR OTHERWISE (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY DISCLAIMED.
8. Limitation of Liability.
EXCEPT FOR A BREACH OF OBLIGATIONS UNDER SECTION 5 OR SECTION 6: (a) UNDER NO CIRCUMSTANCES WILL EITHER PARTY, ITS SUPPLIERS OR AFFILIATED PERSONS OR ENTITIES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING CLAIMS FOR LOSS OF DATA, USE OF OR INABILITY TO USE THE PLATFORM, INTERRUPTION IN USE OR AVAILABILITY OF DATA OR THE SPECIFIC RESULTS OBTAINED THROUGH THE USE OF THE PLATFORM) ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR REMEDY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE; AND (b) IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH BLOCKDAEMON, BLOCKDAEMON’S SUPPLIERS AND AFFILIATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING ARISING HEREUNDER EXCEED THE FEES THAT CUSTOMER HAS PAID TO BLOCKDAEMON UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
Blockdaemon will indemnify, defend and hold Customer harmless from and against all claims, suits and/or proceedings brought by any third party against Customer alleging infringement of such third party’s intellectual property rights by the Platform, including with respect to any resulting liabilities, losses, damages and costs awarded by a court or included as part of a final settlement, as well as reasonable attorneys’ fees, in connection with the foregoing; provided, that Customer: (a) promptly notify Blockdaemon, in writing, of any such claim, suit or proceeding; (b) cooperate reasonably with Blockdaemon, at Blockdaemon’s expense, in the defense and settlement thereof; and (c) allow Blockdaemon to control the defense and settlement thereof. If any infringement claim with respect to the Platform may be or has been asserted, Customer will allow Blockdaemon, at Blockdaemon’s option and expense, to: (i) procure for Customer the right to continue using the Platform; (ii) replace or modify the Platform to eliminate the infringement while providing functionally equivalent performance; or (iii) terminate this Agreement with respect to the Platform in exchange for a refund of the pro-rata portion of Fees that Customer has actually paid to Blockdaemon for the utilization of the Platform corresponding to periods following such termination. Blockdaemon’s obligations under this Section 9 shall not apply to any claims based upon: (A) any materials, software or other information that have been altered by Customer or any party other than Blockdaemon; (B) the combination of the Platform with any items not provided or required by Blockdaemon, in writing (including in documentation provided by Blockdaemon); or (C) use of the Platform or any such materials, software or information after termination pursuant to sub-section (iii) above. This Section 9 states Customer’s exclusive remedy and Blockdaemon’s sole liability in connection with any claim of infringement or misappropriation of intellectual property rights.
(a)Independent Parties/Third Party Beneficiaries. Customer and Blockdaemon are independent parties. Nothing in this Agreement will be construed to make either party an agent, employee, franchisee, joint venturer or legal representative of the other party. Neither party will either have, or represent itself to have, any authority to bind the other party or act on its behalf. Nothing in this Agreement is intended or shall be construed as a third party beneficiary agreement, nor shall this Agreement confer, convey or be deemed to accord any rights to any third party.
(b)Force Majeure. Neither party will be liable for any failure or delay in performing an obligation under this Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, or governmental acts or omissions, laws or regulations. These causes will not excuse Customer from paying amounts due under this Agreement.
(c)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 Customer provides in the Order (in the case of notice to Customer) 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 Customer via the e-mail address for Customer provided in the Order. Customer may change its notice address by written notice to Blockdaemon, as described above.
(d)Assignment. Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without Blockdaemon’s prior written approval, which will not be unreasonably withheld. Any assignment or attempt to do so other than as provided in this Section 10(d) will be void.
(e)Waiver, Modification, Severability, Cumulative Remedies, Agreement Drafting, Construction.
(i)Waiver, Modification. Except as otherwise provided herein, any waiver, amendment or other modification of this Agreement will not be effective unless in a physical writing, manually executed by the parties (e.g., no e-mail correspondence or other form of electronic contracting shall serve to amend, modify or waive any portion of this Agreement). No other course of conduct shall operate to waive, amend or modify this Agreement. The waiver by either party of any of its rights or remedies in a particular instance will not be construed as a waiver of the same or different right or remedy in subsequent instances.
(ii)Severability. If any provision of this Agreement is held to be invalid, it shall either be: (A) revised only to the extent necessary to make it enforceable, and such revision shall not affect the enforceability: (I) of such provision under other circumstances; or (II) of the remaining provisions hereof under any circumstances; or (B) if such revision is not possible, severed from this Agreement and the remainder of this Agreement shall continue in full force and effect.
(iii)Cumulative Remedies. Except as expressly provided to the contrary herein, all remedies set forth in this Agreement are cumulative and not exclusive of any other remedies at law or in equity, statutory or otherwise.
(iv)Agreement Drafting. Each party has had the opportunity to consult legal counsel with respect to the terms and conditions of this Agreement. This Agreement will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party.
(v)Construction. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include entities, corporate and otherwise; and (in each case) vice versa. The section headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement. Whenever the terms “including” or “include” are used in this Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of, the items within such classification.
(f)Survival. Sections that by their nature, or to give effect to their meaning, must survive expiration or termination of this Agreement, shall survive any expiration or termination of this Agreement.
(g)Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, U.S.A., excluding its conflicts of laws principles. Any controversy or claim arising out of or relating to this Agreement or the existence, validity, breach or termination thereof, whether during or after the Term, will be brought in the federal or state courts having jurisdiction over New York County, New York, to whose exclusive jurisdiction the parties hereby irrevocably submit for such purposes. Both parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”) and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement.
(h)Entire Agreement. This Agreement (including the Order) and any schedules, exhibits and other documents expressly incorporated herein, constitute the complete and entire statement of all terms, conditions and representations of the agreement between Blockdaemon and Customer with respect to its subject matter and supersede all prior agreements, writings or understandings, whether oral or in writing. No terms or conditions stated in any purchase order or in any other order documentation Blockdaemon may receive from Customer shall be incorporated into, or form any part of, this Agreement, and all such terms or conditions shall be null and void.