TERMS OF SERVICE
Last Updated: December 17, 2020
These Terms of Service constitute a binding agreement between Chainstack and Customer (each, a “party”) under which Chainstack provides Customer access to Chainstack Managed Services. Customer accepts and agrees to be bound by the Agreement by executing an Order Form for Chainstack Services or by using Chainstack Services.
- “User” means the employees and/or contractors of Customer for which Customer has purchased a User license to enable access and use of Chainstack Platform.
- “Access Credentials” mean login information, passwords, security protocols, and policies through which Users access and use Chainstack Services.
- “Chainstack Platform” means the interface of Chainstack Services that Users are able to access and use for purposes of using the administrative functionality of Chainstack Services.
- “Chainstack Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions, and use of Chainstack Services and which are made available to Customer.
- “Chainstack Services” means the version of the Chainstack software as a service offering made generally commercially available by Chainstack as of the Effective Date, and all Updates thereto made generally commercially available by Chainstack to its customers during the term of this Agreement, including Chainstack Platform services.
- “Chainstack System Analytics” means anonymized information, data, statistics, metadata, inferences, interrelationships, and/or associations generated or derived from the use of Chainstack Services and/or Technology, expressly excluding Customer Inputs, and which is used by Chainstack to provide and improve Chainstack Services and to improve the Chainstack Technology.
- “Chainstack Technology” means the computer software, computer code, scripts, neural networks, artificial intelligence, application programming interfaces, methodologies, processes, templates, reports, workflows, diagrams, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, APIs, third-party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available Chainstack Services, including, without limitation, all upgrades, enhancements, modifications, additions and improvements thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.
- “Chainstack API” means a collection of routines, classes, function parameters, protocols, webhooks, related libraries and other instructions provided in source code or object code form.
- “Customer Inputs” means information, data, text, content, videos, images, audio clips, photos, graphics, and/or other types of content, information and/or data posted, provided and/or uploaded to Chainstack Services by Customer and/or its Users.
- “Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
- “Third Party Services” means any software, software-as-a-service, data sources or other products or services separately procured by Customer from a third party that are integrated with Chainstack Services by Customer or by Chainstack including without limitation through use of the Chainstack APIs.
- “Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of Chainstack Services made generally commercially available as part of Chainstack Services during the Term of this Agreement.
- CHAINSTACK SERVICES
- Chainstack Services. Subject to and in accordance with this Agreement and the applicable Order Forms, including, without limitation, payment of all applicable fees, Chainstack will use reasonable commercial efforts to make Chainstack Services available to Customer.
- Customer Access. Customer acknowledges and agrees that Customer’s and its Users’ access and use of Chainstack Services is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use Chainstack Services, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. Chainstack will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software.
- Modifications to Chainstack Services. Chainstack reserves the right to modify Chainstack Services on a continuous basis and if any such modification materially and adversely reduces the functionality of Chainstack Services, Customer may terminate its subscription for Chainstack Services pursuant to Section 10.2(a). Chainstack may condition the implementation of new features, functionality or other modifications to Chainstack Services on Customer’s payment of additional fees provided that Chainstack generally charges other customers for such modifications.
- Trial Period. If Customer orders a trial subscription to Chainstack Services, Chainstack will make Chainstack Services available to Customer on a trial basis (the “Trial”) until the end of the trial period ordered by Customer set forth on the corresponding Order Form (“Trial Period”). During Trial Period, Customer may only use Chainstack Services to review, demonstrate, and evaluate Chainstack Services. Access to Chainstack Services will continue after the applicable Trial Period has expired and Customer will automatically be enrolled into a Developer plan subscription at the end of the Trial Period. Additional trial terms and conditions may appear on the Order Form for the Trial. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. During a Trial Period, Customer shall not use Chainstack Services for any purpose other than the sole purpose of determining whether to subscribe to Chainstack Services for a longer period of time. DURING A TRIAL PERIOD, THE CHAINSTACK SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY. ANY DATA CUSTOMER ENTERS INTO THE CHAINSTACK SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE CHAINSTACK SERVICES BY OR FOR CUSTOMER, DURING A TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS CUSTOMER CONTINUE TO SUBSCRIBE TO CHAINSTACK FOR A SUBSCRIPTION TO THE SAME CHAINSTACK SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED CHAINSTACK SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
- Chainstack API Services. Abuse or excessively frequent requests to Chainstack via the API may result in the temporary or permanent suspension of the User’s access to the API. Chainstack, in our sole discretion, will determine abuse or excessive usage of the API. We will make a reasonable attempt to warn the User via email prior to suspension. Users may not share API keys to exceed Chainstack’s rate limitations.
- ACCESS GRANT; LICENSES; OWNERSHIP
- Access Grant. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, the Chainstack Documentation, and each Order Form, Chainstack grants to Customer during the Term a non-exclusive, non-transferable, worldwide, revocable, non-sublicensable right to allow: (a) Users to access and use Chainstack Services for Customer’s internal business purposes. The rights set forth in Section 3.1(a) may be exercised by Customer’s third-party contractors and service providers that are not competitors of Chainstack and which perform services for or on behalf of Customer; provided, that (i) Customer requires such third parties to execute a written agreement with Customer that is at least as protective of Chainstack Services as this Agreement and which does not grant any greater rights than those granted to Customer in Section 3.1(a) and includes all restrictions set forth in Section 4 and (ii) Customer shall be responsible for any breach of this Agreement by any such third party.
- Customer Inputs. To enable Chainstack to provide Chainstack Services, Customer grants to Chainstack a non-exclusive, royalty-free, fully paid, worldwide license, under any and all of Customer’s Intellectual Property Rights, to host, use, serve, render, store, access, copy, test, analyze, and create derivative works of the Customer Inputs for the sole purposes of providing the Services and improving and enhancing the Services. In addition, Customer agrees that Chainstack may use its third-party contractors and services providers to exercise the licenses granted to Chainstack in this Section to perform services for or on behalf of Chainstack. Customer owns all right, title and interest in and to the Customer Inputs and reserves all rights not expressly granted to Chainstack under this Agreement.
- Users. The number of Users who are permitted to access and use Chainstack Services are set forth in Term and services agreement. Chainstack will provide an individual appointed by Customer (which may be an employee or consultant of Customer or may be the Customer’s Chainstack account manager) in writing with administrative access to Customer’s account so that Customer can provide access to Chainstack Services to the Users and provision the number of Workflows assigned to each User. Customer will ensure that all its Users comply with the terms and conditions of this Agreement. Customer will promptly notify Chainstack of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Chainstack with respect to: (i) investigation by Chainstack of any suspected or alleged violation of this Agreement, and (ii) enforcement of this Agreement. Chainstack may suspend or terminate any User’s access to Chainstack Services upon notice to Customer in the event Chainstack reasonably determines that such User has violated any terms of this Agreement. Customer will at all times be responsible for all actions taken under a User’s account, whether such action was taken by a User, or by another party, and whether such action was authorized by a User.
- Service Level Agreement. The service levels applicable to Chainstack Services are set forth in the Service Level Agreement. Customer’s sole and exclusive remedy and Chainstack’s sole and exclusive obligation, for any failure to meet the service levels are as provided in the Service Level Agreement.
- Data Backup. (a) Chainstack will follow its standard archival procedures for storage of Customer Inputs. In the event of any loss or corruption of Customer Inputs, Chainstack will use commercially reasonable efforts to restore the lost or corrupted Customer Inputs from the latest backup of such Customer Inputs maintained by Chainstack or its third-party service provider in accordance with its archival procedures. (b) Chainstack will not be responsible for any loss, corruption, destruction, alteration, or unauthorized disclosure of or access to Customer Inputs directly or indirectly arising from acts or omissions of Customer, its Users or a third party. CHAINSTACK’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER INPUTS PURSUANT TO THIS SECTION 3.5 WILL CONSTITUTE CHAINSTACK’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS, CORRUPTION, DESTRUCTION, ALTERATION, OR UNAUTHORIZED DISCLOSURE OF OR ACCESS TO CUSTOMER INPUTS.
- Feedback. In the event Customer provides Chainstack any ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback or other input related to the Services, Chainstack Services or the Chainstack Technology (including Customer and its Users), (collectively “Feedback”), including without limitation in response to any product plans or roadmaps shared with Customer, unless otherwise agreed in writing prior to such disclosure, Customer grants to Chainstack a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“ Improvement”) incorporating or derived from any Feedback with no obligation to license or to make available the Improvement to Customer or any other person or entity.
- Ownership. The Chainstack Services, the Chainstack Technology, the Chainstack System Analytics, and the Chainstack Documentation and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Chainstack and its licensors. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by Chainstack and its licensors. Nothing in this Agreement will be deemed to grant to Customer any right to receive a copy of software platform underlying Chainstack Services, or any other Chainstack Technology, in either object or source code form.
- Marketing. Chainstack may publicly refer to Customer as a customer of Chainstack, including on Chainstack’s website and in sales presentations, and may use Customer’s logo for such purposes. Similarly, Customer may publicly refer to itself as a customer of Chainstack’s software as a service, including on Customer’s website and in sales presentations. Customer agrees that Chainstack may issue at its own expense a Customer-approved press release after the Effective Date regarding Customer’s use of Chainstack Services. The parties agree to cooperate in the development of a case study, the content of which will be directed by Chainstack and approved by Customer, and which will include an impact analysis and which Customer agrees that Chainstack may publish on its website or in its marketing materials.
- CUSTOMER RESPONSIBILITIES
- Access Credentials. Customer will safeguard, and ensure that all Users safeguard the devices, computers, and networks used to access Chainstack Services and safeguard all Access Credentials. Customer will be responsible for all acts and omissions of Users. Customer agrees to: (1) keep its Access Credentials secure and confidential and not to allow any of Customer’s Users to provide their Access Credentials to anyone else; and (2) not permit others to use Customer’s Access Credentials. Customer will notify Chainstack immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security. Chainstack reserves the right, in its sole discretion and without liability to Customer or its Users, to take any action Chainstack deems necessary or reasonable to ensure the security of Chainstack Services and Customer’s Access Credentials and account, including terminating Customer’s access or the access of any of Customer’s Users, changing passwords, or requesting additional information to authorize activities related to Customer’s account.
- Use Guidelines. Customer shall comply with all applicable laws, rules, and regulations in its use of Chainstack Services. Customer shall, and shall ensure that its Users will, use Chainstack Services solely for Customer’s internal business purposes as contemplated by this Agreement and shall not:
(i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make Chainstack Services available to any third party, other than as expressly permitted by this Agreement;
(ii) interfere with or disrupt the integrity or performance of Chainstack Services, the Chainstack Technology or the data contained therein or disrupt any servers or networks connected to Chainstack Services, or disobey any requirements, procedures, policies or regulations of networks connected to Chainstack Services;
(iii) attempt to gain unauthorized access to Chainstack Services or the Chainstack Technology or any related systems or networks;
(iv) remove, alter or obscure any proprietary notices associated with Chainstack Services;
(v) access or use Chainstack Services in a Singapore embargoed country or in violation of any applicable export law or regulation (including any Singapore export laws and regulations);
(vi) use Chainstack Services in violation of any applicable, law, rule regulation or guideline;
(vii) attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with Chainstack Services or breach any security or authentication measures; or
(viii) utilize Chainstack Services in order to (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libellous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third party privacy rights; or (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or plant malware on Chainstack’s computer systems, those systems of Chainstack’s third party service providers or vendors, or otherwise use Chainstack Services to attempt to upload and/or distribute malware.
- Restrictions. Customer will not: (a) adapt, alter, modify, improve, translate or create derivative works of Chainstack Services (or any part thereof including the Chainstack Technology); or (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of Chainstack Services; or (c) provide, maintain access to, or use Chainstack Services in any manner inconsistent with this Agreement.
- Customer Input Restrictions. The Chainstack Services includes the ability for the Customer to upload Customer Inputs. The Customer is responsible for all Customer Inputs. Customer represents, warrants and covenants that the Customer and its Users have all rights and licenses necessary to upload the Customer Inputs, to grant the licenses granted hereunder and to enable each party to exercise its rights and perform its obligations under this Agreement. Customer represents, warrants and covenants that the Customer Inputs:
i. will not and does not infringe the patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
ii. will not and does not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
iii. is not and will not become unlawful, tortious, fraudulent, defamatory or harmful to minors, obscene, pornographic, or offensive as determined by Chainstack in its sole discretion;
v. will not and does not misrepresent the source of the Customer Inputs;
vi. will not and does not disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to, proprietary or confidential information of others for which Customer does not have the right or license to use and provide Chainstack the rights granted hereunder;
vii. will not and does not misrepresent the Customer’s identity in any way;
viii. will not and does not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and
ix. will not and does not advocate or encourage any illegal activity; and
x. will not violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability.
- FEES AND PAYMENT
- Fees. In consideration for the rights granted hereunder, Customer will pay to Chainstack the usage fee and subscription fee according to the fees listed on Chainstack website [https://chainstack.com]. All subscription and usage fees of the platform are payable by Credit Card at the time of purchase and at the end of each period. All fees are non-refundable, except as expressly otherwise set forth herein, and will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any fees that are not paid when due are subject to interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
- Taxes. Customer will make all payments to Chainstack free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Chainstack will be Customer’s sole responsibility, and Customer will provide Chainstack with official receipts issued by the appropriate taxing authority, or such other evidence as Chainstack may reasonably request, to establish that such taxes have been paid.
- Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party ( “Confidential Information”). For the avoidance of doubt, the Chainstack Blockchain Managed Services, Chainstack Technology, Chainstack API, and Chainstack Enterprise constitute Confidential Information of Chainstack. Further, for the avoidance of doubt, the Customer Inputs constitute Confidential Information Customer.
- Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Article 6 (Confidentiality) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the disclosing party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the term of this Agreement and for five (5) years following the termination or expiration of this Agreement.
- Exceptions. The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.
- Warranties by Both Parties. Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations, and guidelines, including, without limitation, those related to privacy and data security.
- Chainstack Services Warranty. Chainstack represents, warrants and covenants that Chainstack Services will include the functionality provided in the Chainstack Documentation.
- Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 7 (WARRANTIES) AND EXCEPT FOR THE PROFESSIONAL SERVICES WARRANTY SET FORTH IN SECTION 1.1 OF THE PROFESSIONAL SERVICES TERMS, CHAINSTACK MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE CHAINSTACK SERVICES, THE CHAINSTACK DOCUMENTATION, THE CHAINSTACK TECHNOLOGY, THE PROFESSIONAL SERVICES, OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF THIRD-PARTY RIGHTS, AS WELL AS ANY WARRANTY, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AS BETWEEN CHAINSTACK AND CUSTOMER, THE BETA VERSIONS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND CHAINSTACK SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ASSOCIATED WITH THE BETA VERSIONS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AS WELL AS ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CHAINSTACK’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, TERM, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE CHAINSTACK SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE CHAINSTACK SERVICES AGAIN. Chainstack shall not be responsible for ensuring and does not represent or warrant that: (i) Chainstack Services will meet Customer’s business requirements; (ii) Chainstack Services will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable; or (iii) all deficiencies in Chainstack Services can be found or corrected. Chainstack will not be responsible for: (a) any failure to meet Chainstack Services warranty of Section
- caused by acts within the control of Customer or any User or interoperability of Customer infrastructure with Chainstack Services; (b) loss or corruption of data; (c) the inability of Customer to access or interact with any other service provider through the internet, other networks or users that comprise the internet or the informational or computing resources available through the internet; or (d) Force Majeure Events (as defined in Section 11.8 below).
- Chainstack Indemnity. Chainstack shall defend (at Chainstack’s expense), Customer and its officers, directors and employees from and against any third-party claims, suits, or proceedings ( “Claims”) brought against Customer or its officers, directors or employees by a third party contending that Customer’s use of Chainstack Services in accordance with the Chainstack Documentation infringes any copyright or trade secret rights of a third party and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Chainstack in settlement of the Claim. In the event that Chainstack Services or any part thereof is likely to, in Chainstack’s sole opinion, or do become the subject of an infringement related Claim, and Chainstack cannot, at its option and expense, procure for Customer the right to continue using Chainstack Services, or any part thereof, or modify Chainstack Services, or any part thereof, to make them non infringing, then Chainstack may terminate this Agreement with notice to Customer and will provide the Customer with a refund of any pre-paid fees for the unexpired portion of the remaining subscription term. Chainstack shall have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that Chainstack Services is the basis of the Claims; (ii) the use or combination of Chainstack Services or any part thereof with software, hardware, or other materials not developed by Chainstack if Chainstack Services or use thereof would not infringe without such combination; (iii) modification of Chainstack Services by a party other than Chainstack, if the use of unmodified Chainstack Services would not constitute infringement; (iv) a breach by Customer of any obligation under this Agreement or a use of Chainstack Services by Customer or any User in a manner outside the scope of any right granted herein or not in accordance with the Chainstack Documentation if the claim would not have arisen but for such breach or unauthorized use; (v) an allegation made against Customer arising out of or related to the Beta Versions, open source software, or Customer Inputs; or (vi) an allegation made against Customer prior to the execution of this Agreement or any allegation based upon any action by Customer prior to the execution of this Agreement. The foregoing states Chainstack’s entire liability and Customer’s exclusive remedy for intellectual property rights infringement.
- Customer Indemnity. Customer shall defend, indemnify and hold Chainstack, its affiliates, employees, officers, and directors harmless from and against any loss or damage (including reasonable attorneys’ fees) incurred in connection with Claims (i) made or brought against Chainstack by a third party alleging that the Customer Inputs infringes the intellectual property rights of, or has otherwise harmed, a third party; (ii) based upon any User’s use of Chainstack Services not in accordance with the terms hereof or not in accordance with the Chainstack Documentation or violation of 4.2 (Use Guidelines), 4.3 (Restrictions) or 4.4 (Customer Input Restrictions); or (iii) based on any failure or alleged failure of the Customer to comply with any applicable law, rule or regulation in connection with its use of Chainstack Services for Customer’s business.
- Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defence at the indemnifying party’s expense, and (c) giving sole control of the defence and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without the indemnified party’s prior written consent.
- LIMITATION OF LIABILITY
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE STATEMENT OF WORK OR THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
- Exclusions. The foregoing limitations shall not apply to (i) amounts payable by Customer to Chainstack under an Order Form or Statement of Work, (ii) liability arising from the indemnification obligations in Section 8, (iii) damages arising from a breach by Customer of Section 3.1, 3.2, 3.3, or 4, (iv) damages arising from misappropriation of a party’s Intellectual Property Rights; or (iv) damages arising from a party’s gross negligence or wilful misconduct.
- Savings Clause. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.
- Limitation of Action. To the maximum extent permitted by applicable law and except for actions for non-payment or breach of either party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the cause of action has accrued.
- Allocation of Risk. Each party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without these limitations on its liability.
- TERM AND TERMINATION
- Term. The term of this Agreement will commence on the Effective Date and remain in effect as long as subscription and usage fee are paid.
(a) The termination of this Agreement can be requested by the User at any time, upon which the User will be asked to pay any outstanding amount owed, after which no further charges will be incurred by the User.
(b) This Agreement may be terminated by Chainstack if User fails to timely make any payment due hereunder and fails to cure such default within fifteen (15) days after receiving notice in writing from Chainstack of such failure (whether or not Chainstack avails itself of its right to suspend Services pursuant to Section 10.3 hereof).
- Suspension of Services. At any time during the Term, Chainstack may, immediately upon notice to Customer, suspend its performance under this Agreement and any Order Form or may suspend any and all Users’ access to Chainstack Services, in Chainstack’s sole reasonable discretion, including, without limitation, for any of the following reasons: (a) a reasonable threat to the technical security or technical integrity of Chainstack Services exists as determined by Chainstack in its sole and absolute discretion; provided that Chainstack promptly recommences performance upon the cessation of the threat, or (b) if any amount due under this Agreement is not received by Chainstack within fifteen (15) days after it was due and Chainstack provided written notice of same.
- Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Chainstack prior to the effective date of termination. In the event of termination by Chainstack pursuant to Section 10.2(a) or 10.2(b), all amounts payable by Customer under this Agreement will become immediately due and payable.
- Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, User’s right to access and use Chainstack Services will immediately terminate, User will immediately cease all use of Chainstack Services, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Upon expiration or termination of this Agreement, Chainstack will cease use of the Customer’s name, logo, and trademarks (“Customer Marks”); provided, however, that (a) Chainstack will have a reasonable time to remove the Customer Marks from promotional materials, and (b) Chainstack will not be required to remove any printed materials from circulation.
- Governing Law; Jurisdiction. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Republic of Singapore. Each party hereby consents to the personal jurisdiction and venue in the courts of Singapore. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Export; Anti-Corruption. Each party shall comply with the export laws and regulations of Singapore and other applicable jurisdictions in providing and using Chainstack Services. Without limiting the foregoing, (i) each party represents that it is not named on any Singapore government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Chainstack Services in violation of any Singapore export embargo, prohibition or restriction. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Chainstack’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Chainstack.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver; Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, (including without limitation any nondisclosure agreements previously executed by the parties), proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in this Agreement. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by Chainstack with respect to future functionality or features for Chainstack Services. In the event of any conflict between the provisions in this Agreement and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
- Attorney’s Fees. Customer shall pay on demand all of Chainstack’s reasonable attorney fees and other costs incurred by Chainstack to enforce this Agreement or to collect any fees or charges due to Chainstack under this Agreement following Customer’s breach of its payment obligations under this Agreement or any Order Form.
- No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or change of control, including without limitation a sale of all or substantially all of its assets, stock or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labour dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party (“Force Majeure Events”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- Independent Contractors. Chainstack’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
- Notices. All notices under this Agreement shall be in writing. All notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, (iv) by facsimile or (v) by electronic mail to the address of the party specified in this Agreement or an Order Form. All notices shall be effective upon (i) receipt by the party to which notice is given, (ii) the second (2nd) day following sending by electronic mail or facsimile, or (iii) on the fifth (5th) day following mailing, whichever occurs first. Each party may change its address for receipt of notice by giving notice of such change to the other party.
- Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of this Agreement, any Order Form or any Statement of Work delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement, the Order Form or Statement of Work.
a. Subject to the restrictions in this Section 11.12 (Modifications), Chainstack may modify these Terms, the Professional Services Terms, and the Service Level Agreement. If Chainstack modifies these Terms, the Professional Services Terms, and the Service Level Agreement, it will provide prior written notice (“Modification Notice”) to Customer of such modifications at least 30 days prior to the effectiveness of the modifications. Notwithstanding the previous sentence, Chainstack may not provide prior notice if modifications are necessary to comply with applicable laws, rules, regulations or guidelines but will use commercially reasonable efforts to provide prior notice when practicable. If the modifications materially and adversely affect Customer, and Customer does not wish to accept such modifications, then Customer may terminate Customer’s subscription to the affected Chainstack Services by written notice to Chainstack within the 30-day period following the date of the Modification Notice, subject to the terms of this Section 11.12 (Modifications).
b. If the Modification Notice states that the modifications will become effective upon commencement of a renewal Subscription Term, then the modifications will become effective for all Chainstack Services, as applicable, affected by the changes upon renewal of the applicable Subscription Term. Customer may avoid the applicability of the changes only by cancelling the renewal of the Subscription Term prior to the commencement of the renewal Subscription Term.
c. If the Modification Notice states that the modifications will become effective during the then-current Subscription Term, then Customer may terminate Customer’s subscription to the affected Chainstack service or Professional Services, as applicable, at any time. If Customer does not terminate the affected Chainstack Platform subscription as specified in this Section 11.12 (Modifications), then Customer will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice.
- Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favour of or against either party and that ambiguities shall not be interpreted against the drafting party.