THIS IS A LEGAL AGREEMENT BETWEEN YOU ("CUSTOMER") AND BLOCKCYPHER, INC ("BLOCKCYPHER"). BY CLICKING ON THE "I ACCEPT" CHECKBOX YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER, AND YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT.
1. ACCESS RIGHTS; RESTRICTIONS
Subject to Customer’s compliance with the terms and conditions of this agreement (the “Agreement”), BlockCypher hereby agrees that Customer has the non-exclusive right to access and use the services specified in the order form (“Order Form”) (collectively, the “Service”) during the term of this Agreement for the purposes of supporting Customer and only in accordance with BlockCypher’s applicable user documentation (or other BlockCypher-provided written instructions). For clarity, the Service is hosted by BlockCypher.
1.2. Service Materials
The Service may include the provision of certain materials (such as, APIs, SDKs, software code, etc.)(“Service Materials”). Subject to the terms of this Agreement, BlockCypher grants to Customer a non-exclusive, non-sublicenseable, non-transferable, limited license to internally use the Service Materials in accordance with the documentation supplied by BlockCypher solely for the purpose of making Customer’s product(s) (“Customer Product(s)”) fully compatible and interoperable with the Service. Customer represents and warrants that the Customer Product(s) (and the development, use, distribution and marketing thereof) will (i) comply with all laws and regulations and (ii) not violate any of the rights of any third party (including, without limitation, privacy rights and intellectual property rights. Customer will defend, indemnify and hold BlockCypher harmless from and against all third party claims (and all resulting damages awarded to third parties, and costs and expenses, including reasonably attorneys’ fees) arising from or in connection with any Customer Product (including, without limitation, any breach of the preceding sentence).
Customer will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service; (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party (excepting its end users as contemplated by Section 1.1); or (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof. Customer will use the Service only in compliance with (i) the rights granted hereunder, and (ii) in accordance with all applicable laws and regulations. For clarity, all use restrictions on the Service also apply to the Service Materials.
1.4. Professional Services
In connection with the Service, BlockCypher may provide ancillary professional services (such as training and implementation) (“Professional Services”). Any such Professional Services will be specified in an applicable Statement of Work (“SOW”).
Except for the rights expressly granted under this Section 1, BlockCypher retains all right, title, and interest in and to the Service (and all data, software, products, works, and other intellectual property created, used, or provided by BlockCypher for the purposes of this Agreement). To the extent Customer provides BlockCypher with any feedback relating to the Service (including, without limitation, feedback related to usability, performance, bug reports and test results or the Service Materials) (“Feedback”), Customer hereby grants BlockCypher a non-exclusive, perpetual, irrevocable, sublicensbale, royalty-free, fully paid-up, worldwide right and license to use, reproduce, display, distribute and otherwise fully exploit such Feedback.
2. PAYMENT OF FEES
If Customer use of the Services exceeds the usage capacity based on the Customer’s fee tier, as set forth in the Order Form, Customer will no longer be able to access the Services until either (i) Customer pays fees for the excess usage or (ii) the next calendar month. Unless otherwise specified in an Order Form, all Fees will be invoiced in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice or in bitcoin for the equivalent USD amount on the date of invoice. Invoices unpaid for more than 30 days are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all (i) taxes associated with Service other than taxes based on BlockCypher’s net income, and (ii) BlockCypher’s costs of collection in the event of Customer’s delinquent payment. All Fees paid are non-refundable (except as otherwise expressly set forth in an Order Form) and not subject to set-off.
3. TERM; TERMINATION
Subject to earlier termination as provided below, this Agreement shall commence on the Effective Date and continue for one (1) year; thereafter this Agreement will automatically renew for consecutive periods of one (1) year each (unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then current period). Either party may terminate this Agreement in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) from receipt of written notice thereof. Without limiting the foregoing, BlockCypher may immediately suspend or limit Customer’s access to or use of the Service if in BlockCypher’s reasonable judgment, (a) Customer is engaging in illegal activities in connection with its use of the Service or (b) the BlockCypher Service or any component thereof is about to suffer a significant threat to security or functionality. Upon termination of this Agreement, all rights granted herein to Customer will terminate and Customer will make no further use of the Services. The following provisions will survive termination of this Agreement: Sections 1.5, 2, 3, 4, 6, 7, 8 and 10, as well as all license/use restrictions and indemnity obligations.
During the term of this Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential and/or proprietary materials and information (“Confidential Information”). For clarity, the Service Materials are the BlockCypher’s Confidential Information. All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information; for the avoidance of doubt, the Service and terms of this Agreement are Confidential Information of BlockCypher. Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 4 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as this Agreement.
BlockCypher will defend, indemnify and hold Customer harmless from and against all third party claims (and all resulting damages awarded to third parties, and costs and expenses, including reasonably attorneys’ fees) arising from infringement by the Service of any third party U.S. patent, copyright or trademark; provided that, Customer provides BlockCypher with (i) prompt written notice of all claims and threats thereof, (ii) sole control of all defense and settlement activities and (iii) all reasonably requested assistance with respect thereto. BlockCypher will not be responsible for any settlements it does not pre-approve in writing.
6. WARRANTY; DISCLAIMER
BlockCypher warrants that it will use commercially reasonable efforts to (i) provide all Professional Services in a professional and workmanlike manner, and (ii) promptly correct all verifiable defects in the Service and Professional Services of which BlockCypher is aware. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, BLOCKCYPHER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. BLOCKCYPHER DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER PARTY, SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (A) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE, OR TECHNOLOGY, OR LOSS OF BUSINESS; (B) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) MATTERS BEYOND SUCH PARTY’S REASONABLE CONTROL; OR (D) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY CUSTOMER TO BLOCKCYPHER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES (PROVIDED THAT, IF NO FEES ARE PAID, SUCH AMOUNTS SHALL BE LIMITED TO US$1,000.00). THE LIMITATIONS ON LIABILITY CONTAINED HEREIN SHALL NOT APPLY TO BREACH(ES) OF SECTIONS 1.2, 1.3 OR 4. THE LIMITATION CONTAINED IN SUBSECTION (D) DOES NOT APPLY TO A PARTY’S INDEMNITY OBLIGATIONS.
Until one (1) year after termination of this Agreement, Customer will not encourage or solicit any employee or consultant of BlockCypher to leave BlockCypher for any reason.
9. PRESS RELEASE
The parties shall work together in good faith to issue at least one mutually agreed upon press release within ninety (90) days of the Effective Date (such agreement not to be unreasonably withheld or conditioned). In addition, Customer will reasonably cooperate with BlockCypher for case studies and serve as a reference for potential BlockCypher customers.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by a party except with the other party’s prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind BlockCypher in any respect whatsoever. Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major commercial rapid delivery courier service to the address specified on the Order Form (or such other address as may be properly specified by written notice hereunder). This Agreement shall be governed by the laws of the State of California, without regard to the conflict of law provisions thereof. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by one arbitrators appointed in accordance with such Rules. The arbitration shall take place in San Mateo County, California, USA, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in, respectively, San Mateo County, California or the Northern District of California. The prevailing party in any action or proceeding to enforce this Agreement will be entitled to recover costs and attorneys’ fees.