Staking Terms and Conditions for Fireblocks Customers
These terms and conditions, as amended and supplemented from time to time by Blockdaemon, (this “Agreement“) are entered into by and between Blockdaemon, Ltd. (together with its Affiliates, “Blockdaemon”) and you ( “Customer”) The parties hereby agree as follows:
1. Access and Use.
1.1 Ordering Documents. This Agreement establishes the terms and conditions governing Blockdaemon’s or its Affiliates’ provision of the Services.
Access to Staking, Validator Nodes and related services. Blockdaemon hereby grants Customer a limited, non-exclusive, non-transferable (except as permitted by Assignment herein) right and license, without the right to grant sublicenses to access the Staking Services and, where applicable, use the Validator Nodes and any Documentation that Blockdaemon may provide in connection therewith) solely for Customer’s own business purposes, subject to the terms and conditions of this Agreement.
1.2 Service Levels and Support. During the Term, Blockdaemon shall provide the Services in a manner that meets or exceeds the service levels set forth in Exhibit A attached hereto. Blockdaemon shall perform all Services not otherwise subject to a service level requirement in accordance with leading industry standards.
1.3 Modifications to Services. Blockdaemon will determine, in its sole discretion, the network and server requirements to reliably operate Services. Blockdaemon is solely responsible for all costs associated with procuring, installing, and operating the Services and Blockdaemon reserves the right to modify the Services from time to time by adding, deleting, or modifying features to improve the user experience or for other business purposes. Blockdaemon further reserves the right to discontinue any feature of the Services or any portion thereof at any time during the Term at Blockdaemon’s sole and reasonable discretion. Blockdaemon will provide Customer with at least thirty (30) days’ prior written notice of any modification or discontinuation of services (or portion thereof) that would result in a material diminution of the Services offered to Customer as of the Effective Date, provided that a shorter notice period may be required to respond to a data security issue, a valid court order or a requirement of any relevant regulator.
1.4 Limitations of Services. Blockdaemon shall not be responsible nor liable for any failure in the Services resulting from, caused by or attributable to: (a) Customer’s delay in or failure to take any actions upon which Blockdaemon’s performance is dependent; (b) Customer’s failure to use the Services in accordance with Blockdaemon’s requirements, including without limitation, the Documentation; (c) Customer’s failure to act in accordance with the network protocol; (d) Customer's products or services, or Customer’s (or its Authorized Users’ Representative’s or end user’s) gross negligence, willful misconduct, or unauthorized acts or omissions, unless caused in part or in whole by Blockdaemon’s gross negligence or willful misconduct; or (e) unauthorized access, breach of firewalls or other hacking by third-parties, except to the extent such access, breach or hacking is caused by Blockdaemon’s gross negligence or willful misconduct.
1.5 Restrictions on Use of Services. Customer will not nor will they authorize, permit, or encourage any third-party to: (i) allow anyone other than Customer’s Authorized Users to access and use the Services; (ii) allow Customer’s Authorized Users to share with any third-party his or her access credentials; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services; (iv) modify, adapt, or translate the Services; (v) make any copies of the Services; (vi) resell, distribute, or sublicense the Services or use the Services for the benefit of anyone other than Customer (and Customer’s end users in its sole discretion); (vii) remove or modify any proprietary markings or restrictive legends placed on the Services; (viii) use the Services in violation of any applicable law, rule, or regulation, or to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (ix) access or use the Services to collect any market research for any purpose; (x) use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express written permission, or (xi) introduce, post, or upload to the Services any Harmful Code. Blockdaemon has the right to monitor Customer’s compliance with this Section 1 and its use of the Services generally.
2. Term; Termination.
2.1 Term. This Agreement commences on the Effective Date and continues in full force and effect until terminated.
2.2 Termination. Either party may terminate this Agreement at any time for convenience by providing written notice to the other party,
2.3 Effect of Termination. Upon termination of this Agreement, Customer shall immediately cease all access to, and use of the Services and Customer shall withdraw and unbond any Digital Assets.
2.4 Survival. The following provisions will survive termination of this Agreement: Section 2.3 (“Effect of Termination”), this Section 2.4 (“Survival”), Section 4 (“Intellectual Property”), Section 5 (“Confidentiality”), Section 6 (“Representations and Warranties; Disclaimer”), Section 7 (“Limitation of Liability”), Section 8 (“Indemnification”), Section 9 (“Binding Arbitration”), Section 10 (“Equitable Relief”), Section 11 (“General Provisions”) and Section 12 (“Definitions”).
3. Fees.
Customer agrees to pay to Blockdaemon all Fees due and payable for the performance of the Service by Blockdaemon. Customer will pay Blockdaemon a percentage of the Participatory Rewards directly attributable to Customer Funds that will vary by protocol. All Participatory Rewards will be made in the same Digital Assets in which the Customer Funds are denominated.
4. Intellectual Property.
4.1 Blockdaemon Materials. Except for the licenses expressly granted in this Agreement, Blockdaemon shall remain the sole and exclusive owner of all right, title and interest in and to, all Blockdaemon Pre-Existing IP, newly developed IP, and the trademarks, service marks, and logos used, displayed, and registered and/or unregistered trademarks or service marks of Blockdaemon or of its licensors (collectively, the marks “BD Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the BD Trademarks, without Blockdaemon’s prior written consent specific for each such use. Use of the BD Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance in writing by Blockdaemon.
4.2 Customer Materials. Except for the licenses expressly granted in this Agreement, Customer shall remain the sole and exclusive owner of all right, title and interest in and to, all Customer Pre-Existing IP and Customer Materials. Customer hereby grants a limited, non-exclusive, revocable, non-transferable, and non-sublicensable license to Blockdaemon to use Customer Pre-Existing IP solely for the purpose of Blockdaemon performing the Services under this Agreement. This license will be revoked upon the expiry or termination of this Agreement, unless otherwise agreed by the Customer. Upon expiration or termination of the Agreement, Blockdaemon may retain an archival copy of the Customer Materials kept in the normal course of business for purposes of complying with applicable Law, provided that the Customer Materials will remain subject to the confidentiality provisions herein. Customer acknowledges that Blockdaemon will use the email address provided on opening an account, or as updated by Customer from time to time, as the primary method of communication between Blockdaemon and Customer. Accordingly, Blockdaemon will send product and new feature announcements, marketing materials, and promotional offers to this email address. If Customer is not willing to receive such promotional information, the Customer may opt-out at any time from non-essential communications. Customer owns all trademarks, service marks, and logos used and displayed may be registered and/or unregistered trademarks or service marks of Customer or of its licensors (collectively, the “Customer Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Customer Trademarks, without its prior written consent specific for each such use. Use of the Customer Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance in writing by Customer.
4.3 Service Performance Data. Customer acknowledges and agrees that Blockdaemon will aggregate Customer Materials along with the technical and other data about Customer’s use of the Services, to create Service Performance Data, which excludes any personally identifiable information. Customer acknowledges that Blockdaemon owns the Service Performance Data. For clarity, this Section 4.5 does not give Blockdaemon the right to identify Customer as a source of any Service Performance Data.
5. Confidentiality; Privacy Policy Data; Specific Performance
5.1 Confidentiality. At all times the receiving party will protect and preserve the Confidential Information of the disclosing party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The receiving party may disclose, distribute, or disseminate the disclosing party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that such Representatives have a need to know and are bound by confidentiality obligations at least as restrictive as those contained herein. The receiving party will not disclose, distribute, or disseminate the Confidential Information to any third-party, other than its Representatives, without the prior written consent of the disclosing party. The receiving party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the receiving party is legally compelled to disclose any of the disclosing party’s Confidential Information, the receiving party will promptly provide prior written notice of such requirement to the disclosing party, if legally permitted, so that the disclosing party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing party waives compliance with the provisions of this Section, the receiving party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed and will use its best efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
5.2 Specific Performance and Injunctive Relief. The receiving party acknowledges that in the event of a breach of Section 5.1 by the receiving party or its Representatives, substantial injury could result to the disclosing party for which monetary damages will not be a sufficient remedy for such breach. Therefore, in the event that the receiving party or its Representatives engage in, or threaten to engage in, any act which violates Section 5.1, the disclosing party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 5.1. The disclosing party will not be required to post a bond or other security in connection with the granting of any such relief.
5.3. Privacy Policy. Blockdaemon’s Privacy Policy, as set forth at https://www.blockdaemon.com/privacy-policy, or a successor website, and as amended and updated from time to time, governs the access of the Services by you.
6. Representations and Warranties; Disclaimer.
6.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) its performance under this Agreement shall comply with all applicable Laws, including, without limitation, all applicable national and international Laws relating to information privacy.
a. Each party represents and warrants that, in connection with the Services, it will not contract with or otherwise do business with any individual, company, organization or other entity, or with, in, or involving any country or territory (including North Korea, Cuba, Iran, Syria, and Russia), that is the subject or target of any U.S. or other national government financial or economic sanctions, trade embargoes, or otherwise identified on a list of prohibited, sanctioned, debarred, or denied parties including those imposed, administered or enforced from time to time by the European Union, United Kingdom or Swiss governments via the EU sanctions regulations, including Council Regulation (EC) No 428/2009 and Council Regulation (EU) No 833/2014, as well as any subsequent amendments or regulations; the UK sanctions regulations, including the Sanctions and Anti-Money Laundering Act 2018 and the Sanctions (EU Exit) Regulations 2019, as well as any subsequent amendments or regulations; and the Swiss sanctions regulations, including the Federal Act on the Implementation of International Sanctions, as well as any subsequent amendments or regulations (together, “Sanctions”).
b. Each party further represents and warrants that it: (a) has adequate controls and systems in place to screen, and is fully responsible for screening, transactions of its customers, sub-contractors, suppliers, vendors, and all other third-parties who may assist, benefit from, or provide goods or services to, or receive goods or services from, it to ensure compliance with applicable laws pertaining to Sanctions; (b) has appropriate procedures in place to comply with (and to ensure timely reporting under) the requirements of the anti-boycott laws and regulations of the European Union, UK, Switzerland and other jurisdictions in which Customer does business; and (c) has adequate policies and procedures in place to ensure that, and will ensure that, the Services provided in connection with this Agreement will not be exported, re-exported, sold, leased or otherwise transferred to, or utilized by, an end-user engaged in any of the following activities: (i) activities related to weapons of mass destruction; (ii) terrorist activities; (iii) military end uses in or connected with certain government owned or controlled corporations of such countries as identified by EU and other applicable government licensing authorities. Nothing in this Agreement is to be construed as authorization by Blockdaemon for Customer to export, sell, lease, transfer, market or resell the Services in violation of the terms of this Agreement.
c. Each party further represents and warrants that it is compliant with all applicable anti-money laundering requirements including the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 and all applicable laws and regulations promulgated thereunder, and relevant guidelines and standards issued from time to time (including by the European Supervisory Authorities, the UK Financial Action Task Force and the Central Bank).
6.2 Customer Representations and Warranties. Customer further represents and warrants to Blockdaemon: (a) that Customer has obtained and shall obtain all necessary rights and consents to provide Blockdaemon with the Customer Pre-Existing IP and Customer Materials including, with respect to any personal information contained therein, the express consent from any applicable individuals to disclose and transfer such information to Blockdaemon for the purposes contemplated herein; (b) that the Customer Materials do not and shall not infringe, misappropriate, or otherwise violate the rights of any third-party including, without limitation, intellectual property rights; and (c) in the case of the Pre-existing IP of Customer, the Customer Product and the upgrades, enhancement thereof, when used in accordance with the Documentation and the terms of this Agreement, to Customer’s knowledge do not infringe the IP rights of any person or misappropriate a trade secret or breach of any confidentiality obligation to any third-party.
6.3 Blockdaemon Representations and Warranties. Blockdaemon further represents, warrants and covenants to Customer that: (a) the Blockdaemon Pre-existing IP, the Licensed Software along with the upgrades and enhancement thereof, when used in accordance with the Documentation and the terms of this Agreement, to Blockdaemon’s knowledge do not infringe the IP rights of any person or entity, nor misappropriate a trade secret or breach of any confidentiality obligation to any third-party; (b) that it will provide the Nodes and the Services in accordance with all applicable Protocol Rules and in such a manner as to minimize any Slashing fees; (c) Blockdaemon will be responsible for any Slashing fees caused by a Service Default; and (d) Blockdaemon further represents and warrants that it will maintain its ISO 27001 certification during the term of this Agreement.
6.4 Third Party IP. Neither party provides a warranty in relation to the Third-party IP incorporated in, or required to use, the parties’ IP, as the case may be, and all Third-party IP is provided to the other party on an “as is” basis, and neither party provides a warranty in relation to any Open-Source Software incorporated in, or required to use, the Parties’ IP, and all Open-Source Software is provided to the other party on an “as is” basis.
6.5 No Control Over Digital Asset Protocols. Blockdaemon does not own or control the underlying software protocols which govern the operation of Digital Assets supported by the Nodes. Generally, the underlying protocols are open source, and anyone can and/or may use, copy, modify, and distribute them. Blockdaemon assumes no responsibility for the operation of the underlying protocols and is not able to guarantee the functionality or security of network operations. In particular, the underlying protocols may be subject to sudden changes in operating rules (including, without limitation, “forks”). Any such operating changes may materially affect the availability, value, functionality, and/or the name of the Digital Asset Customer owns. Blockdaemon does not control the timing and features of these material operating changes. In the event of any such operational change, Blockdaemon reserves the right to takes such steps as may be necessary to protect the security and safety of its Services, including temporarily suspending operations for the involved asset(s), and other necessary steps. Blockdaemon will use its best efforts to provide Customer with notice of its response to any material operating change; however, in the event such changes are outside of Blockdaemon’s control they may occur without notice to Blockdaemon. Blockdaemon’s response to any material operating change is subject to its sole discretion and includes without limitation deciding not to support any new Digital Asset, fork, or other actions. Customer acknowledges and accepts the risks of operating changes to Digital Asset protocols and agrees that Blockdaemon is not responsible for such operating changes and is not liable for any loss of value or missed rewards Customer may experience as a result of such changes in operating rules.
6.6 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 6.1 AND 6.3, THE SERVICES, THE NODES, THE LICENSED SOFTWARE, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED BY BLOCKDAEMON HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER BLOCKDAEMON NOR ITS LICENSORS MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT BLOCKDAEMON AND ITS LICENSORS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
7. Limitation of Liability. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (i) NEITHER PARTY IS LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND EXCEPT FOR SLASHING PENALTIES CAUSED BY SERVICE DEFAULTS (ii) ANY DIRECT DAMAGES, INCLUDING ANY LOSSES ARISING UNDER SECTION 8.2 BELOW, THAT CUSTOMER MAY SUFFER AS A RESULT OF CUSTOMER’S USE OF THE SERVICES SHALL BE LIMITED TO THE TOTAL FEES THAT CUSTOMER HAS PAID TO BLOCKDAEMON WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO ANY CLAIM. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO CUSTOMER. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
8. Indemnification.
8.1 Indemnification by Customer. Customer will indemnify, defend, and hold Blockdaemon, its Affiliates, licensors, hosting providers, and each of their respective Representatives harmless from and against any and all damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by any of such indemnified parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from or relating to: (i) Customer’s breach or violation of this Agreement; or (ii) Customer’s gross negligence or willful misconduct.
8.2 Indemnification by Blockdaemon. Blockdaemon will indemnify, defend, and hold Customer and its Representatives harmless from and against any Losses incurred by any such indemnified parties in connection with any third-party Claim arising from: (i) Blockdaemon’s gross negligence or willful misconduct, (ii) Blockdaemon’s breach of this Agreement; (iii) allegations that Customer’s access to and use of the Services or Nodes in compliance with this Agreement infringes or misappropriates any third-party intellectual property rights (an “Infringement Claim”); or (iv) any Slashing penalties caused by a Service Default. In the event that Blockdaemon reasonably determines that any Service is likely to be the subject of a third-party Infringement Claim, Blockdaemon will have the right (but not the obligation), at its own expense, to: (i) procure for Customer the right to continue to use the Service as provided in this Agreement; (ii) replace the infringing components of the Service with other components with equivalent functionality; or (iii) suitably modify the Service so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to Blockdaemon on commercially reasonable terms, Blockdaemon may terminate this Agreement without further liability to Customer and refund any Fees that have been pre-paid. Notwithstanding the foregoing, Blockdaemon is not obligated to indemnify, defend, nor hold Customer or its Representatives harmless with respect to any third-party Infringement Claim to the extent the Infringement Claim arises from or is based upon: (i) Customer’s use of the Services not in accordance with the Documentation or this Agreement; (ii) any unauthorized modifications, alterations, or implementations of the Services made by or on behalf of Customer (other than by Blockdaemon); or (iii) use of the Services in a manner or for a purpose for which it was not designed. This Section 8.2 states Customer’s sole and exclusive remedy, and Blockdaemon’s sole and exclusive liability, regarding any third-party Infringement Claim.
8.3 Procedure. The indemnification obligations set forth in Section 8.1 and Section 8.2 are subject to the indemnified party: (i) promptly notifying the indemnifying party of the Claim, provided, however, that any failure of the indemnified party to provide prompt written notice pursuant to this Section 8.3 shall excuse the indemnifying party only to the extent that it is prejudiced thereby; (ii) providing the indemnifying party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying party may not make any admission of liability on behalf of the indemnified party without the indemnified party’s approval.
9. Binding arbitration. In the event of a dispute arising under or relating to this Agreement or the Services (each, a “Dispute”), either party may elect to resolve the dispute by binding arbitration governed by the provisions of the Arbitration Act 2010 and any statutory amendment or modification thereof, by a tribunal comprising one arbitrator which, in default of the parties’ agreement as to the arbitrator is to be appointed by the Chartered Institute of Arbitrators, Ireland. The seat of the arbitration shall be Dublin, Ireland. The law governing this arbitration agreement shall be Irish law. The language of the arbitration shall be English. The costs of any arbitration and the fees of the arbitrator shall be advanced in the first instance by the parties in equal shares. The arbitrator may award to the prevailing party in any arbitration the prevailing party’s fees and other costs in any such arbitration. The award of the arbitrator shall be final and binding on the parties and may be enforced in any court of competent jurisdiction. As set forth in Section 10 below, nothing in this Agreement will prevent either party from seeking injunctive relief in any court of competent jurisdiction as necessary to protect its proprietary interests.
10. Equitable Relief. Both parties acknowledge and agree that in the event of a breach or threatened violation of either party's intellectual property rights or confidential or proprietary information, the non-breaching party will suffer irreparable harm and will therefore be entitled to seek injunctive relief to enforce this Agreement. Both parties may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect their rights and property pending the outcome of the arbitration referenced above.
11. General Provisions.
11.1 Cooperation. Customer acknowledges that Blockdaemon and certain of its Affiliates are obligated to report certain information to relevant authorities. As a result, Customer agrees to promptly provide such information or cooperation as Blockdaemon may reasonably request in order to address any matters with, or inquiries by, any regulatory authority related to the Services. Customer agrees to and will cooperate with Blockdaemon’s due diligence assessment process upon initial onboarding and from time to time during the Term of this Agreement. Such cooperation will include, but not be limited to, Customer responding to Blockdaemon questionnaires, providing supporting documentation, and, in limited cases, access to select personnel. Blockdaemon will not request due diligence questionnaire responses from Customer more than once in any given twelve (12) month period unless otherwise required by Blockdaemon to comply with its legal or regulatory obligations. Customer agrees to notify Blockdaemon of any material changes to their questionnaire responses that may take place between questionnaire administrations.
11.2 Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other party; provided, however, that a party may, upon written notice to the other party and without the consent of that other party, assign or transfer this Agreement to an Affiliate or in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, or sale of all or substantially all its assets or business). Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
11.3 Waiver. No failure or delay by either party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
11.4 Governing Law. This Agreement will be governed by and construed in accordance with the laws of Ireland, without regard for choice of law provisions thereof.
11.5 Independent Contractors. The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner, joint venture, or legal representative of the other party for any purpose, and neither party will have any right, power, or authority to obligate the other party.
11.6 Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
11.7 Force Majeure. Except for Customer’s obligations to pay any Fees due for Services rendered prior to a Force Majeure Event, described below, neither party shall be deemed to be in breach of this Agreement or otherwise be liable to the other by reason of any delay in performance or non-performance of any of its obligations under this Agreement to the extent that such delay or non-performance is due to any cause beyond its reasonable control (including but not limited to: fires, earthquake, acts of God, governmental action, strike, lock-out, pandemic, etc.) (“Force Majeure Event”). The party affected by any event of the force majeure shall promptly give the other party written notice of the nature and extent of the event and the parties shall enter into bona fide discussions with the view of alleviating its effects or to agree upon such alternative arrangements as may be fair and reasonable. If Blockdaemon claims a Force Majeure Event for a period of thirty (30) days or longer, Customer may terminate this Agreement and Blockdaemon will refund the portion of any prepaid fees covering the remainder of the term after the effective date of termination.
11.8 Third-Party Beneficiaries. The parties agree that there are no third-party beneficiaries under this Agreement.
11.9 Notices. Any notice under or in connection with this Agreement shall be in writing and shall be sent by confirmed facsimile, nationally recognized (in the country of the sending party) overnight courier or certified mail (return receipt requested) to: (i) the address for notice set forth above, (ii) an address otherwise provided by the receiving party; or (ii) in the case of notice to Blockdaemon, to the then-current address of Blockdaemon’s corporate headquarters as set forth on Blockdaemon’s corporate website at www.blockdaemon.com. Additionally, Blockdaemon may notify Customer via the e-mail address that Customer provided below. Customer may change its notice address by written notice to Blockdaemon, as described above.
11.10 Export. Customer will not export or re-export, either directly or indirectly, the Services, the Nodes, or any copies thereof in such manner as to violate the export laws and regulations of the European Union or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, Customer will not permit its Authorized Users or any third-parties to access nor use the Services or the Nodes in violation of any European Union export embargo, prohibition, or restriction
11.11 Complete Understanding. This Agreement constitute the final and complete agreement between the parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. Headings are for convenience only and shall not be used to limit or interpret the meaning of any of the provisions of this Agreement.
12. Definitions.
“Affiliate” means any entity that controls, is controlled by or is under common control with a Party, where “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, and operations of such entity, whether through ownership of voting securities, by contract, or otherwise.
“Authorized User” means Customer’s employees, contractors, or agents authorized by Customer to access and use the Services pursuant to the terms and conditions of this Agreement. Customer is responsible for the acts and omissions of its Authorized Users and any other person who accesses and uses the Services using any of Customer’s or its Authorized Users’ access credentials.
“Blockchain” means a digital ledger in which transactions made with a Digital Asset are recorded chronologically.
“Blockchain Records” means the transaction and related data collected from or released to the Blockchain. The parties acknowledge that such Blockchain Records are not owned by either party.
“Confidential Information” means this Agreement and: (i) with respect to Blockdaemon, the Services, the Nodes, the Service Performance Data, and any and all source code relating thereto, and any other non-public information or material regarding Blockdaemon’s legal or business affairs, financing, customers, properties, pricing, products, services, or data; and (ii) with respect to Customer, the Customer Materials, and any non-public information or material regarding Customer, its legal or business affairs, financing, employees, customers, properties, or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action or inaction by, or involvement of, the party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is in the rightful possession of the Receiving Party on a non-confidential basis prior to the disclosure by the party disclosing such Confidential Information (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference to, use of, or access to the Confidential Information of the Disclosing Party; or (d) is obtained by the Receiving Party without restrictions, after due inquiry of use and disclosure obligations from a third-party.
“Customer Funds” means the Digital Assets held by Customer and to be staked pursuant to this Agreement.
“Customer Materials” means any data, information, and other materials that Customer or its Authorized Users submit to the Services, including, without limitation, the personal information (such as name, email address, and other identifying information) of Customer and its Authorized Users.
“Customer Product” means a product and/or a service developed primarily by Customer that incorporates or relies on the Licensed Software.
“Digital Asset” means digital currencies, cryptocurrencies, decentralized application tokens, protocol tokens, smart contracts, Blockchain-based assets, stablecoins, cryptoassets, other cryptofinance assets, digital assets, and associated instruments to the extent Blockdaemon currently supports such Digital Assets.
“Documentation” means the manuals, specifications, and other materials describing the functionality, features, operating characteristics and use of the Services or Licensed Software as Blockdaemon may make available to Customer or its Authorized Users from time to time, whether in a written or electronic form.
“Effective Date” means the date that the Customer starts using the Services and the parties are entering into this Agreement
“Fees” means the fees, costs, and expenses to be paid by Customer in connection with this Agreement.
“Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Nodes, Services, or any associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Nodes to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services.
“Intellectual Property” or “IP” means any invention, patent, patent application, patent disclosures, innovation, improvement, enhancement, modification, technique, formula, license, material, composition, original work of authorship, software, database, source code, know-how, development, concept, method, trade secret, design, analysis, drawing, report and all similar or related information or development (whether or not patentable or registrable under copyright, trade secret or similar laws), and all intellectual property rights and similar rights and all upgrades therein in any jurisdiction in the world.
“Law(s)” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Node(s)” means the server or virtual server that contains a copy of the distributed ledger and serves as a communication point that executes various essential network functions, such as creating, receiving, or sending information and validating transactions within a Blockchain.
“Object Code” means computer code, substantially or entirely in binary form (included but not limited to bytecode form), which is directly executable by a computer after suitable processing but without the intervening steps of compilation or assembly.
“Open-Source Software” means software that, as a condition of its use or development requires that such software, any developments to that software or any other software with which such software is combined or distributed be: (a) disclosed or distributed in source code or Object Code form; (b) licensed to the general public for development or other purposes; or redistributable.
“Participatory Rewards” means any Digital Asset Customer earns as a result of Customer’s use of the Service, including rewards earned by Customer’s end users and delegators, to the extent such end users or delegators have staked their Digital Assets to Blockdaemon Nodes. For the avoidance of doubt, Participatory Rewards may not be applicable to or available for every supported network.
“Pre-Existing” with respect to Intellectual Property means any Intellectual Property rights owned by either Party prior to the Effective Date that shall remain solely owned by such Party.
“Protocol Rules” means the specific sets of rules that allow data to be shared between Nodes. In reference to Digital Assets, the rules establish the structure of the blockchain, the distributed database that allows Digital Assets to be securely exchanged on the internet.
“Representatives” means a party’s respective Affiliates, subsidiaries, officers, directors, employees, and agents.
“Service Default” means the occurrence of one of the following events: (a) Blockdaemon’s infrastructure fails to switch from one region to another region due to a region-based outage; (b) Blockdaemon’s infrastructure fails to switch from one cloud provider to another cloud provider due to a cloud provider-based outage; or (c) Blockdaemon’s material failure to perform the Services as required by the terms of this Agreement. Specifically, not included in the definition are (i) protocol-level failures caused by bugs, maintenance, upgrades, or general failure; (ii) Customer acts or omissions; or (iii) a Force Majeure event.
“Services” means the staking services provided by Blockdaemon.
“Service Performance Data” means any data that is derived from the use of the Services that does not directly or indirectly identify Customer, your Authorized Users, Affiliates, any end users, or any natural person and includes (a) data such as volumes, frequencies, and Service performance data.
“Slashing” means any penalty assessed by a network protocol for unavailability, slow, incorrect, or malicious performance.
“Staking” means the consensus mechanism used by various Digital Asset protocols to process transactions and add new blocks to that protocol’s blockchain per the Protocol Rules.
“Third-party IP” means any third-party technology or software that is owned by a third-party.
“Validator” or “Validator Node” means the server or virtual server that, in a proof-of-stake Virtual Digital Asset protocol, is responsible for carrying out specific Protocol Rules for the purpose of Staking a Digital Asset.
Exhibit A
Service Level Agreement – Staking and Validator Nodes
Blockdaemon will provide to Customer the following service levels for the Staking Services and Validator Nodes subscribed to by Customer:
• Individual Validator Node uptime of 99.9% during validation, that time whereby the finalized epoch is increasing as per the Protocol Rules.
• Quality assurance and testing of all included subsystems (monitoring, logging, balancing).
• Full hardware / software maintenance and servicing upgrades and deployments. Within twenty-four (24) hours, seven (7) days a week, three hundred and sixty five (365) days a year for critical, urgent or security related issues.
• On-call support. Direct access to Blockdaemon via several channels. Standard service support hours are 0800 to 1800 Monday through Friday (Eastern Time Zone). Limited support available 0800 to 1800 Saturday and Sunday (Eastern Time Zone) for select Services and incident severity. 24x7x365 support for logging and managing incidents. 24x7x365 on-call support available for an additional fee.
• Complete reports. Showing uptime, rewards and slashing or other events.
• Slashing Guarantee. Geimburse for penalty applied to the balance staked as a direct result of a Service Default. Reimbursement within sixty (60) days of notice from Customer.
Slashing Process. In the event of a Slashing event, Blockdaemon will provide the Customer with an incident report detailing the event and the services impacted within that Service Period (each such report, an “Incident Report”). The Incident Report will include the reasonable information available about the Slashing penalty event, including timestamps and causes. To claim a Slashing reimbursement, Customer must send an email to: [email protected] with “Slashing Reimbursement Request” in the subject line and reasonable information about the event and balance staked penalized..
Blockdaemon Ltd. -- 5th Floor, Rear Connaught House, 1 Burlington Road, Dublin, Dublin 4, D04 C5y6, [email protected]
