Terms of Service

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ENTERING INTO AN ORDER FORM WITH CONSENSYS OR OTHERWISE USING OR ACCESSING THE PLATFORM, CUSTOMER ACCEPTS AND AGREES TO THESE TERMS AND CONDITIONS.

These Terms of Service constitute an agreement (together with any Orders, this “Agreement”) by and between [Consensys AG, a Swiss corporation whose principal place of business is Gartenstrasse 6, 6300 Zug, CH] (“Consensys,” “we” or “us”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is deemed effective as of the earlier of (a) the date Customer specifies in an Order and (b) the date on which Customer first uses or otherwise accesses the Platform (the “Effective Date”). Customer’s use of and Consensys’s provision of the Platform are governed by this Agreement.

Recitals

Consensys provides Codefi Assets, a software application, platform and application programming interface to facilitate the issuance and management of Tokens. The parties have agreed that Consensys will provide such software to Customer. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below, the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as set forth below.

Terms and Conditions

1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.

   1. “AUP” means Consensys’s acceptable use policy as set forth in Subsections 10.2(g) and (h).

   2. “Applicable Law” means any statute, statutory instrument, bye-law, order, regulation, directive, treaty or law (including any common law or civil law judgment, demand, order or decision of any court, regulator or tribunal; and/or legally binding rule, policy, guidance or recommendation issued by any governmental statutory or regulatory body).

   3. “Customer’s Clients” means any of Customer’s clients or end customers, including without limitation, their respective agents and employees.

   4. “Customer Data” means data in electronic form managed or stored by the Platform, including without limitation data related to Customer’s Clients, Users, and Customer’s Clients’ own customers.

   5. “Documentation” means the Platform’s standard user manual as provided online and modified from time to time.

   6. “Order” means an order for access to the Platform entered into between Customer and Consensys.

   7. “Privacy Policy” means Consensys’s privacy policy, currently posted at https://codefi.consensys.net/privacy-policy.

   8. “Platform” means the Codefi Assets software and service offering to facilitate the issuance and management of Tokens, whether or not hosted by Consensys or a third party on behalf of Customer as a managed service (SaaS) or made available to Customer as software platform or through an application programming interface (API).

   9. “Token” means collectively, all cryptographic tokens, coins, convertible virtual currencies, virtual mediums of exchange or similar instruments issued or issuable by, or through, the Customer or Customer’s Clients, whether or not currently authorized, as well as rights, options, or warrants to purchase such tokens, coins, convertible virtual currencies, virtual mediums of exchange or similar instruments of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for (directly or indirectly) such tokens, coins, convertible virtual currencies, virtual mediums of exchange or similar instruments.

   10. “Token Launch” means the offering, distribution, placement, reservation, sale or issuance by an issuer, directly itself or indirectly through an affiliate or nominee, whether in a single or series of related transactions, of any class or series of Tokens, excluding, for the avoidance of doubt, any such Tokens issued to any network participant for the primary purpose of testing the issuer’s technology on a testnet network.

   11. “Upgrade” means new versions, modifications, updates, or upgrades of the Platform.

   12. “User” means any end user to whom Customer makes the Platform accessible, whether authorized or not.

   13. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Consensys’s products or services.

2. ACCESS.

   1. Use of the Platform. During the Term, Customer may access and use the Platform pursuant to the terms of this Agreement, including, for the avoidance of doubt, the applicable Orders.

   2. Restrictions on Use of Platform. The Platform is licensed, not sold, and Customer receives no title to or ownership of the Platform itself. Furthermore, Customer receives no rights to the Platform other than those specifically granted herein. Without limiting the generality of the foregoing, nothing herein entitles Customer to (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Platform; (b) use the Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Platform’s source code.

   3. Support Services. If Customer purchased any support services in its Order, Consensys will provide the support services that corresponds to such Order to Customer.

   4. Customer’s Clients. Customer may not provide Customer’s Clients or any other party to access or use the Platform.

   5. Documentation: Consensys will provide a copy of the Documentation to Customer. Consensys may revise the Documentation at its sole discretion in response to changes to the Platform made pursuant to Section 5 (Upgrades) below. Such revisions will constitute “Documentation” as of the time revised. Customer may reproduce the Documentation as reasonably necessary to support User’s use of the Platform.

3. AUDIT.

   1. Software Audit. During the Term of this Agreement and at any time during the one-year period thereafter, Consensys may audit Customer’s use of the Platform on five days’ advance written notice. Customer will cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of the Platform. Such audit will not unreasonably interfere with Customer’s business activities. If Consensys discovers unauthorized use, reproduction, distribution, or other exploitation of the Platform or fees that would have applied to authorized exploitation, Customer will reimburse Consensys for such unauthorized use, reproduction, distribution or other exploitation of the Platform in an amount to be determined by Consensys is its sole discretion and the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Consensys may have. Consensys may not conduct an audit more than once per Term. Customer’s books and records disclosed pursuant to an audit will be considered Customer’s Confidential Information pursuant to Article 8 unless Customer informs Consensys to the contrary in writing.

4. LIMITS.

   1. Limiting API Requests. Consensys retains sole discretion to limit Customer’s usage of the Platform (including without limitation by limiting the number of transactions and API requests you may submit to our nodes). Consensys shall provide written notice to Customer prior to effecting any such limits.

5. UPGRADES

   1. Upgrades. Consensys may, in its sole discretion and from time to time, modify or upgrade the Platform and its respective features and functions without notice. Consensys shall use commercially reasonable efforts to undertake any such Upgrades in a manner to minimize disruption to the Customer’s use of the Platform. To the extent any Upgrade is deployed, any element of the upgraded Platform will thereafter be subject to this Agreement’s terms, including without limitation license, warranty, and indemnity terms.

6. FEES & REIMBURSEMENT.

   1. Fees. Customer will pay Consensys the fees (“Fees”) set forth in the Order to access the Platform. Consensys may bill Customer more frequently for Fees accrued if Consensys reasonably believes that Customer’s account is fraudulent or at risk of non-payment. Customer will pay the Fees in U.S. dollars. All amounts payable by Customer under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new service or new feature of the Platform will be effective when Consensys communicates updated fees and charges to Customer, unless Consensys expressly states otherwise in a notice. Consensys may increase or add new fees and charges for any existing services Customer is using by giving Customer at least 30 days’ prior notice. Consensys may elect to charge Customer interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

   2. [Expenses. Customer will reimburse Consensys for all out-of-pocket travel, accommodation and related expenses Consensys reasonably incurs in provision of any services mutually agreed by the parties.]

   3. Invoices. Customer shall remit payment to Consensys within 30 days following receipt of each such invoice. Any late payments will be subject to interest payable at a rate of 1% of interest per month late. Consensys will not be required to refund any fees under any circumstances.

7. IP & FEEDBACK.

   1. IP Rights in the Platform. Consensys retains all right, title, and interest in and to the Platform, including any Upgrades, and the Documentation, except to the extent of the limited licenses specifically set forth in Section 2. Customer recognizes that the Platform and its components are protected by copyright and other laws.

   2. Feedback. Consensys has not agreed to and does not agree to treat as confidential any Feedback that Customer, Customer’s Clients or Users provide to Consensys, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Consensys’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer, Customer’s Clients or the User in question. Notwithstanding the provisions of Article 8 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information.

8. CONFIDENTIAL INFORMATION, PRIVACY & DATA.

   1. Confidential Information Defined. “Confidential Information” refers to the following one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure; (c) any source code disclosed by Consensys and any names of actual or potential customers disclosed by Customer, whether or not marked as confidential; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that Confidential Information may include Discloser’s valuable trade secrets.

   2. Nondisclosure. Recipient will not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) will not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 8; and (b) will not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient will give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense. Recipient will promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention.

   3. Injunction. Recipient agrees that breach of this Article 8 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

   4. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 8.2 above (Nondisclosure) will terminate two years after the date of disclosure; provided that such obligations related to Confidential Information constituting Discloser’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Recipient will return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.

   5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.

   6. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:

      1. IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

      2. USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

   7. Privacy Policy. The Privacy Policy applies only to the Platform and does not apply to any third party website or service linked to the Platform or recommended or referred to through the Platform or by Consensys’s staff.

   8. Risk of Data Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Platform, Customer assumes such risks. Consensys offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

   9. Data Accuracy. Consensys will have no responsibility or liability for the accuracy of data uploaded to the Platform by Customer, including without limitation Customer Data and any other data uploaded by Users.

9. PLATFORM RISKS.

   1. Platform and Application Security. The Platform is an early stage platform that interacts with the Ethereum blockchain and other third party applications. Customer acknowledges that it may encounter errors or downtime when accessing and using the Platform, which may be caused by communication failures, unavailability of the third party network or software bugs or errors in the Platform or the third party application or network or any other reason. In addition, Customer acknowledges that Ethereum applications are code subject to flaws and acknowledges that Customer is solely responsible for evaluating any third party software and the trustworthiness of any third party websites, products, smart contracts, or content Customer accesses or uses through the Platform. Customer further expressly acknowledges that Ethereum applications can be written maliciously or negligently, that Consensys cannot be held liable for Customer’s or Customer’s Clients’ interactions with such applications and that such applications may cause the loss of property or even identity.

   2. Private Keys. Customer acknowledges that Consensys is not responsible for transferring, safeguarding, or maintaining Customer’s or Users’ private keys or any digital assets associated therewith. If Customer loses, mishandles or have stolen associated digital asset private keys, Customer acknowledges that Customer may not be able to recover associated digital asset, and that Consensys is not responsible for such loss.

10. REPRESENTATIONS, WARRANTIES & COVENANTS.

    1. From Consensys.

       1. Re Viruses. Consensys represents and warrants that the Platform does not contain viruses or other computer instructions or technological means intended to disrupt, damage, or interfere with the Customer’s use of its computers or related systems.

       2. Re IP Rights in the Platform. Subject to the next sentence, Consensys represents and warrants that it is the owner of the Platform and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Consensys’s representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Subsections 10.2(a) through 10.2(h) below. In the event of a breach of the warranty in this Subsection 10.1(c), Consensys, at its own expense, will promptly take the following actions: (i) secure for Customer the right to continue using the Platform or (ii) replace or modify the Platform to make it noninfringing, provided such modification or replacement will not materially degrade any functionality. In conjunction with Customer’s right to terminate for breach where applicable and the provisions of Section 11.1 below (Indemnification From Consensys), the preceding sentence states Consensys’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Subsection 10.1(b) and for potential or actual intellectual property infringement by the Platform.

    2. From Customer.

       1. Customer acknowledges that (i) Consensys is a technology provider that offers technology solutions, (ii) Consensys does not provide legal, regulatory, accounting, tax or financial advice, (iii) Consensys is not registered, licensed or supervised in the United States or any other jurisdiction as a broker-dealer, investment adviser or secondary market by the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA) or any other financial regulatory authority, or licensed to provide any financial advice or services, and (iv) Consensys’s provision of the Platform does not constitute and shall not be construed as an offering of securities or as investment advice or investment recommendations.

       2. Token Launch. Before, during and after any Token Launch using the Platform, Customer will (and will cause Customer’s Clients, as applicable, to) exercise reasonable prudence and business judgment in light of its obligations, goals and representations it made in any marketing materials and otherwise in connection with the Token Launch.

       3. Sanctions. Customer represents and warrants that Customer and its financial institutions, or any party that owns or controls Customer or its financial institutions, are (1) not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (for example, the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority and (2) not located in any country to which the United States has embargoed goods or has otherwise applied any sanctions (the countries collectively referred to in this paragraph, the “Restricted List”).

       4. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting its passwords and other log-in information. Customer shall notify Consensys immediately of any known or suspected unauthorized use of the Platform or breach of its security and shall use best efforts to stop said breach.

       5. Users. Customer is responsible and liable for: (a) any unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the Platform through Customer’s account, whether authorized or unauthorized.

       6. Comply with Applicable Laws. Customer undertakes to comply with all Applicable Laws, (including securities law, commodities law, money transmission laws and any other relevant regulatory requirements) in any jurisdiction in which the Platform is accessible to its prospective investors, and/or any Token is offered for sale or made available for use.

       7. Acceptable Use Policy. Customer shall comply with the AUP. Customer shall not: (a) use the Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform; (b) provide Platform passwords or other log-in information to any third party; (c) share non-public Platform features or content with any third party; (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Platform, or to copy any ideas, features, functions or graphics of the Platform; or (e) engage in web scraping or data scraping on or related to the Platform, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 10.2(g), including without limitation by Users, Consensys may suspend Customer’s access to the Platform without advanced notice, in addition to such other remedies as Consensys may have. Neither this Agreement nor the AUP requires that Consensys take any action against Customer or any User or other third party for violating the AUP, this Section 10.2(g), or this Agreement, but Consensys is free to take any such action it sees fit.

       8. Restricted Use. Customer agrees not to, and not to allow third parties to, use the Platform:

          1. to violate, or encourage the violation of, the legal rights of others;

          2. to engage in, promote or encourage any illegal or harmful activity or infringing, offensive or harmful content;

          3. for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website); to interfere with the use of the Platform, or the equipment used to provide the Platform, by customers, authorized resellers, or other authorized users;

          4. to disable, interfere with or circumvent any aspect of the Platform, including any networks and servers operated by us or on our behalf;

          5. to provide false, inaccurate or misleading information;

          6. to send or receive what we reasonably believe to be potentially fraudulent funds, or funds that may be from illegal activity, or used for any illegal purpose (including terrorist financing and circumvention of anti-money laundering regulations;

          7. to refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us;

          8. to control an account that is linked to another account that has engaged in any of such restricted activities;

          9. to access the Platform from a country that is included on the Restricted List;

          10. to take any action that imposes an unreasonable or disproportionately large load on our software or systems (including any networks and servers used to provide any of the Platform) operated by us or on our behalf or the Platform;

          11. to facilitate any viruses, trojan horses, malware, worms or other computer programming routines that attempts to or may damage, disrupt, corrupt, misuse, detrimentally interfere with, surreptitiously intercept or expropriate, or gain unauthorized access to any system, data, information or the Platform.

          12. Test Version. If Customer order or is otherwise using a Test Version of the Platform, Customer agrees not to access or use the Platform for any purpose other than non-commercial use on testnet or a private instance to test the Platform.

       9. From Both Parties. Each party represents and warrants that:

          1. it has the full right and authority to enter into, execute, and perform its obligations under this Agreement;

          2. no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement;

          3. the execution, delivery and performance of this Agreement will not result in any violation of, be in conflict with, or constitute a material default under, with or without the passage of time or the giving of notice: (i) any provision of its organizational documents; (ii) any judgment, decree or order to which it is a party, by which it is bound, or to which any of its material assets are subject; (iii) any material agreement, obligation, duty or commitment to which it is a party or by which it is bound; or (iv) any laws or rules applicable to it.

       10. Warranty Disclaimers. Except for the express warranties in Section 10.1 above, CONSENSYS MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. Consensys does not warrant that the Platform will perform without error or that it will run without immaterial interruption. Consensys provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Platform made by anyone other than Consensys; or (b) use of the Platform in combination with any operating system not authorized in the Documentation or with hardware or software specifically forbidden by the Documentation.

11. INDEMNIFICATION.

    1. From Consensys. Consensys will defend and indemnify Customer and Customer’s Associates (as defined below in Section 11.3) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging infringement of any patent, copyright, trade secret, or other intellectual property right by the Platform. Consensys’s obligations set forth in this Section 11.1 do not apply to the extent that an Indemnified Claim arises out of (a) Customer’s breach of this Agreement; (b) modifications to the Platform made without Consensys’s prior written consent; (c) Customer’s failure to incorporate Upgrades that would have avoided the alleged infringement; (d) Consensys’s modification of the Platform in compliance with specifications provided by Customer; or (e) use of the Platform in combination with hardware or software not provided by Consensys.

    2. From Customer. Customer will indemnify and defend Consensys and Consensys’s Associates (as defined below in Section 11.3) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, employees or Users or any of the acts or events described in Subsection 11.1(a) through 11.1(e) above. Furthermore, Customer shall indemnify Consensys and Consensys’s Associates against costs relating to any breaches of Applicable Laws, including, but not limited to, the costs of any regulatory investigation, and any regulatory fines that may be imposed, or however so incurred, for Customer’s use of the Platform.

    3. Litigation & Additional Terms. The obligations of the indemnifying party (“Indemnitor”) pursuant to Section 11.1 or 11.2 above: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments; and (b) will be excused to the extent that the other contracting party’s (“Indemnified Party’s”) or any of such Indemnified Party’s Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (As used in this Article 11, a party’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

12. LIMITATION OF LIABILITY.

    1. Dollar Cap. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CONSENSYS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO CONSENSYS UNDER THIS AGREEMENT FOR THE PLATFORM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE.

    2. Exclusion of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

    3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 12 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF CONSENSYS IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 12, Consensys’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Consensys’s liability limits and other rights set forth in this Article 12 apply likewise to Consensys’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

13. Term & Termination.

    1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period specified in the Order. If the Order provides for renewals, the Term will renew for successive periods as specified therein, unless either party refuses such renewal by written notice 30 or more days before the renewal date.

    2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, effective in 30 days unless the other party first cures such breach.

    3. Termination for Regulatory Compliance. Consensys may terminate this Agreement by written notice (either on a temporary or permanent basis) if Consensys reasonably believes (1) such termination is necessary for Consensys’s compliance with its legal or regulatory obligations; (2) Customer is not or will not be in compliance with Applicable Law or regulation; or (3) Customer is unable to continue operating the platform with compliance with Applicable Law.

    4. Termination for Convenience. Customer may terminate this Agreement for any reason by providing Consensys at least 30 days’ written notice. Consensys may terminate this Agreement for any reason by providing Customer at least 30 days’ written notice.

    5. Effects of Termination. Upon termination of this Agreement, including expiry of the Term or the applicable renewal Term, Customer will cease all use of the Platform and delete, destroy, or return all copies of the Documentation in its possession or control. Customer shall be liable for payment of all Fees (i) accrued to Consensys prior to the termination date and (ii) that would otherwise accrue for the remaining period of the Term assuming that the Agreement had not been terminated. The following will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees and expenses incurred before termination; (b) Articles and Sections 2.2 (Restrictions on Platform), 3 (Audit), 6 (IP & Feedback), 7 (Confidential Information), 10.4 (Warranty Disclaimers), 11 (Indemnification), and 12 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

14. MISCELLANEOUS.

    1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Consensys employee or contractor will be an employee of Customer.

    2. Users. Customer is responsible and liable for the acts and omissions of Users related to this Agreement and to the products and services provided pursuant to this Agreement, as if they were Customer’s own acts and omissions.

    3. Notices. Notices pursuant to this Agreement will be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested.

For Consensys:

Attention: Legal

Consensys

49 Bogart Street Suite 22

Brooklyn, NY 11206.

[email protected]

For Customer:

The contact information specified in the Order.

4. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

5. Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder, other than to its Affiliates, without the other’s express written consent. Except to the extent forbidden in this Section 14.5, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns. “Affiliates” means any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the entity specified. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

6. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

7. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

8. Government Restricted Rights. The Platform is provided with restricted rights. Use, duplication, or disclosure for or by the government of the United States, including without limitation any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable: (i) in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19; or (ii) in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Consensys. Customer will not remove or deface any restricted rights notice or other legal notice appearing in the Platform or on any packaging or other media associated with the Platform.

9. Bankruptcy Rights. The limited rights and licenses granted to Customer in Section 2 (collectively, the “License Provisions”) are licenses to “intellectual property” rights, as defined in Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Sections 101, et seq.). If Consensys is subject to any proceeding under the United States Bankruptcy Code, and Consensys as debtor in possession or its trustee in bankruptcy rejects this Agreement, Customer may, pursuant to 11 U.S.C. Section 365(n)(1) and (2), retain any and all rights granted to it under the License Provisions to the maximum extent permitted by law. This Section 14.9 will not be construed to limit or restrict any right or remedy not set forth in this Section 14.9, including without limitation the right to retain any license or authority this Agreement grants pursuant to any provision other than the License Provisions.

1. 10. Choice of Law, Jurisdiction and Arbitration:

   1. This Agreement is governed by the laws of the State of New York without reference to its choice of law principles.

   2. The parties will attempt in good faith to resolve any dispute or Claim (as defined below) arising out of or in relation to this Agreement through negotiations between an officer or director of each of the parties with authority to settle the relevant dispute. If the dispute cannot be settled amicably within fourteen (14) days from the date on which either party has served written notice on the other of the dispute, then Section 14.10(c) shall apply.

   3. Any claim, dispute, or controversy (“Claim”) arising out of or relating to this Agreement or the relationships among the parties hereto shall be resolved by one arbitrator through binding arbitration conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”) as those Rules exist on the Effective Date of this Agreement, including Rules 16.1 and 16.2 of those Rules. The arbitrator’s decision shall be final, binding, and non-appealable. Judgment upon the award may be entered and enforced in any court having jurisdiction. This clause is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or of the arbitrator’s award; any such suit may be brought only in a Federal District Court or a New York state court located in New York County, New York. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this Agreement including any claim that all or any part of the Agreement is void or voidable.

   11. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

   12. Technology Export. Customer will not: (a) permit any third party to access or use the Platform in violation of any U.S. law or regulation; or (b) export the Platform or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Platform in, or export it to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, Syria and the Crimean region of Ukraine).

   13. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

   14. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument. Customer may also execute this Agreement electronically through acceptance of this Agreement through “Click-Wrap” consent.

   15. Amendment. Consensys reserves the right, at its sole discretion, to modify or replace any part of this Agreement (including the Privacy Policy) at any time. It is Customer’s responsibility to check this Agreement periodically for changes. Customer’s continued use of or access to the Platform following the posting of any changes to this Agreement constitutes acceptance of those changes. Consensys may also, in the future, offer new services and/or features through the Platform (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.