Master Services Agreement
Publication date: March 11, 2020
This Master Services Agreement (“Agreement”) is entered between dfuse Platform Inc., with a place of business at 301-486 St. Catherine Street West
Montreal, QC H3B 1A6, Canada (“dfuse”), and the customer listed on the Subscription Order Form (“Customer”). dfuse and Customer are each referred to herein as a “Party” and collectively as the “Parties”. This Agreement is effective as of the date of last signature on the first Subscription Order Form entered into by the parties (“Effective Date”).
NOW THEREFORE, the Parties agree as follows:
In this Agreement:
- “Agreement” means this Master Services Agreement, together with any Subscription Order Forms.
- “API” means application programming interface.
- “Customer” means the customer named above and in the applicable Subscription Order Form.
- “Customer Data” means the data submitted by or for Customer to the dfuse Platform or collected and processed by or for Customer using the dfuse Platform.
- “Data Controller” shall mean the natural or legal person who alone or jointly with others determines the purposes and means of the processing of Personal Information.
- “Data Processor” shall mean the natural or legal person who processes Personal Information on behalf of the Data Controller.
- “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation), the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the GDPR, applicable to the Processing of Personal Information under the Agreement.
- “Data Subject” means the identified or identifiable person to whom Personal Information relates.
- “dfuse Platform” means dfuse’s proprietary hosted software platform which provides sophisticated and reliable APIs to support developers building applications on the blockchain, as well as unique solutions including dfuse API™, dfuse Stream™, dfuse Lifecycle™, dfuse Worker™, dfuse Analytics™ and dfuse Search™.
- “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that dfuse generally makes available to subscribers to the Service, as the case may be.
- “eosq” means dfuse’s proprietary high-precision block explorer and analytics platform.
- “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.
- “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
- “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
- “Professional Services” means the services provided by dfuse or a dfuse authorized services partner, pursuant to a Subscription Order Form and the terms of Section 3 of this Agreement, which services, the fees therefor and any other terms and conditions applicable thereto shall be described in the Subscription Order Form.
- “Services” means the dfuse Platform, esoq and any ancillary services available in connection therewith, as such Service may be updated from time to time by dfuse in its sole discretion. The Services reside on a server operated by or on behalf of dfuse and are remotely accessible over the Internet by Customer and its Users.
- “Software” means dfuse’s proprietary and third party software program(s) in machine-readable object code format and other related software included in the Services, including the Documentation for such program(s) and which is made available by dfuse for use by Customer in accordance with the terms hereof.
- “Subscription” means the right granted by dfuse to Customer to access and use a Service in accordance with this Agreement and the applicable Subscription Order Form, for the Subscription Period specified in the applicable Subscription Order Form.
- “Subscription Fee” means the fee payable by Customer for a Subscription as set out in the Subscription Order Form.
- “Subscription Order Form” means (i) an electronic form provided by dfuse on its website for ordering Subscriptions, Support Services, and/or Professional Services, or (ii) a written document executed by dfuse and Customer in respect to Customer’s purchases of Service Subscriptions, Support Service, and/or Professional Services from dfuse.
- “Subscription Period” means the period of time that Customer is authorized by dfuse to access and use the Service (including the Documentation).
- “Support Services” means the technical support services for the Service provided by dfuse as described in the applicable Subscription Order Form .
- “Support Terms” means the terms on which dfuse, or an authorized support partner, provides Support Services for the Service to Customer described in a Subscription Order Form.
- “User” means an employee or contractor of Customer to whom Customer (or dfuse at Customer’s request) has supplied a user identification and password.
SERVICES AND SUPPORT
- Right to Access and Use the Services. Subject to the terms of this Agreement, dfuse hereby grants Customer a non-exclusive, non-transferable (except to the extent permitted herein), worldwide, license to access and use (and to permit Users to access and use) during the applicable Subscription Period the Services (and related Documentation) specified in the applicable Subscription Order Form.
- Reservation of Rights. The Services and Documentation are licensed, not sold. dfuse and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Software, Service and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Services and Documentation and subject to all of the provisions of this Agreement. Subject to the limited rights expressly granted in this Agreement, dfuse reserves all rights, title and interest in and to the Software and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
- Restrictions. Customer shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Service or any part of the Service, including but not limited any component which comprises the Service, but not including any output from the Service; (b) knowingly interfere with service to any of dfuse’s users, hosts or networks, including by means of intentionally submitting any Malicious Code, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) use the Services or any Software or any data obtained by the use thereof to develop any product or service that has functionality similar to the Services or Software or part thereof; (e) circumvent any timing restrictions that are built into the Service; (f) sell, rent, lend, transfer, distribute, license, or grant any rights in the Service or Documentation in any form to any person without the written consent of dfuse; (g) remove any proprietary notices, labels, or marks from the Service or Documentation; (h) create any “links” to or “frame” or “mirror” of the Service or any portion thereof; or (i) use the Service in violation of applicable laws.
- Third Party Offerings. The Services may rely on or require that Customer access services delivered or performed by third parties independently of dfuse related to the Services, or other online, web-based services or other business application subscription services, that interoperate with the Services (collectively “Third Party Offerings”). Customer acknowledges that dfuse does not have any control over such Third Party Offerings. Customer further acknowledges and agrees that dfuse shall not be liable under this Agreement for any delays, rate limits, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to such Third Party Offerings.
- Commencement. dfuse will commence provision of the Services to Customer within ten (10) business days of the Contract Start Date specified in the applicable Subscription Order Form and shall continue such provision through the Subscription Period. As part of the registration process, Customer will identify an administrative user for Customer’s dfuse account.
- Support. dfuse will provide the Support Services specified in the applicable Subscription Order Form in accordance with the Support Terms.
- Service Levels; Availability. dfuse will use commercially reasonable efforts to achieve the service levels set forth in the Support Terms. “Service Availability” means the number of minutes in a month that the key components of the Service are operational as a percentage of the total number of minutes in such month, excluding Downtime. “Downtime” means the time in a given month when the Services are not accessible to more than 50% of Customer’s Users, or when more than 50% of Customer’s API calls are not reaching the service, excluding downtime or unavailability resulting from: (a) scheduled maintenance, (b) events of Force Majeure (as defined in the Agreement), (c) malicious attacks on the Service, (d) issues associated with the Customer’s network or equipment, or (e) inability to deliver the Service because of acts or omissions of Customer. dfuse reserves the right to take the Service offline for scheduled maintenance for which Customer has been provided reasonable notice and dfuse reserves the right to change its maintenance window upon prior notice to Customer.
- Suspension of Services. Although dfuse has no obligation to monitor Customer’s use of the Services, dfuse may do so and may prohibit or prevent any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Without limiting the foregoing, any use of the Services by Customer that, in dfuse’s reasonable judgment, imminently threatens the security, stability, integrity or availability of the Services, or otherwise harms dfuse, other customers or third parties, may result in immediate suspension of the Services, however dfuse will use commercially reasonable efforts under the circumstances to: (a) notify Customer in advance of such suspension, and (b) provide Customer with a reasonable opportunity to correct its usage prior to any such suspension. dfuse will have no liability for any such suspension. Unless this Agreement has been terminated, dfuse will restore Customer’s access to the Services once it verifies that Customer has resolved the condition requiring suspension.
- Services. If agreed to in a Subscription Order Form, dfuse, or its authorized services partner, will provide Professional Services on a time and materials basis according to the terms and conditions in the Subscription Order Form and in this Section 3.
- Fees and Payment. Customer shall pay fees on a time and materials basis at dfuse’s then-current Professional Services rates or as specified in the applicable Subscription Order Form. Customer shall reimburse dfuse for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by dfuse or its authorized services partner in the performance of any Professional Services, provided that such expenses are approved in advance in writing by Customer. The fees for Professional Services shall exclude all applicable federal, state, provincial, value-added, goods and services, harmonized and local taxes. dfuse shall invoice Customer for fees for Professional Services and development of deliverables provided pursuant to this Agreement on a semi-monthly basis. All such fees shall be paid within thirty (30) days of the date of the invoice.
- Term and Termination. The term of the Professional Services engagement shall be specified in the Subscription Order Form. If Customer terminates a Professional Services engagement for any reason, Customer shall pay dfuse the full fee for any Professional Services performed (including all other costs for which dfuse has the right to reimbursement) up to the effective date of termination of such Professional Services engagement. Either party shall be entitled to immediately terminate a Professional Services engagement for cause in the event of the material breach by the other party of its obligations under this Agreement, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice.
- Intellectual Property Rights. dfuse shall own all right, title and interest and all intellectual property rights in and to any inventions (whether patentable or not), discoveries, concepts, know-how, technology, software (in executable and source code), templates and modifications to the Software, which have been created or developed by dfuse or its authorized services partner on behalf of dfuse, pursuant to a Professional Services engagement. dfuse shall retain all right, title and interest and all intellectual property rights in and to any and all dfuse proprietary information and dfuse Software.
- Users. Customer is responsible for all activities that occur in User accounts and for its and its Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the means by which Customer acquired Customer Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software or the Service, and notify dfuse promptly of any such unauthorized access or use; and (c) use Products only in accordance with the Documentation and applicable laws and government regulations.
- Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords), API keys, authentication tokens, and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
- Feedback. Customer shall own all right, title and interest in and to the Customer Data. If Customer elects to provide any suggestions, comments, improvements, ideas or other feedback relating to the Services to dfuse (collectively, “Feedback”), Customer acknowledges and agrees that dfuse may incorporate into the Services any such Feedback without any obligation, payment, or restriction based on intellectual property rights or otherwise, excluding any Customer Confidential Information contained in the Feedback.
- Processing of Personal Information. Customer’s instructions to dfuse for the Processing of Personal Information shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Customer acquired Personal Information. Customer hereby represents and warrants to, and covenants with dfuse that Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable dfuse to provide the Service, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to dfuse and to or from all applicable third parties.
- Ownership. As between dfuse and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. dfuse does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data. dfuse shall own and retain all right, title and interest in and to (a) the Services and Software, including all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Professional Services or support, and (c) all intellectual property rights related to any of the foregoing.
- Aggregated and Anonymized Data. Notwithstanding anything to the contrary, dfuse shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and dfuse will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other dfuse offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
PROTECTION OF PERSONAL INFORMATION
- Customer is Data Controller. In relation to all Personal Information provided by or through Customer to dfuse under this Agreement, Customer will at all times remain the Data Controller and will be responsible for compliance with all applicable Data Protection Laws. To the extent that dfuse processes Personal Information in the course of providing the Service and related services under this Agreement, it will do so only as a Data Processor acting on behalf of the Customer (as Data Controller) and in accordance with the requirements of this Agreement.
- dfuse’s Processing of Personal Information. dfuse shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. dfuse shall only Process Personal Information on behalf of and in accordance with Customer’s documented instructions and Data Protection Laws for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Customer’s Users or customers in their use of the Service; and (iii) Processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement.
- Data Subject Request. dfuse shall, to the extent legally permitted, promptly notify Customer if dfuse receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). dfuse shall use commercially reasonable efforts to assist Customer by appropriate technical and organizational measures, to fulfill Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. Customer shall be responsible for any costs arising from dfuse’s provision of assistance with a Data Subject Request.
- Data Breach. Upon becoming aware of any unlawful access to any Personal Information, any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information, or any actual loss of or suspected threats to the security of Personal Information (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorized access) (each a “Security Incident”), dfuse will promptly notify Customer of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated customers of Customer, but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required assistance in the investigation of the Security Incident and provide Customer with detailed information about the Security Incident. dfuse will take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Customer in doing so; and will provide prior notice to Customer of, and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal Information without Customer’s prior written approval, not to be unreasonably withheld, conditioned or delayed. dfuse will work with and coordinate with Customer on any such notices in any event. dfuse will comply with this Section 6.5 at dfuse’s cost unless the Security Incident arose from Customer’s negligent or willful acts or dfuse’s compliance with Customer’s express written instructions.
- Subcontracting. dfuse may engage third party subcontractors to assist in the provision of the Service under this Agreement. Customer authorizes dfuse to subcontract the processing of Personal Information under this Agreement provided that (i) dfuse shall maintain a list of such subprocessors and will provide a copy of that list to Customer upon request; and (ii) all subprocessors will be contractually required by dfuse to abide by substantially the same obligations as dfuse under this Agreement to protect Personal Information, such that the data processing terms of the subcontract will be no less onerous than the data processing terms set out in this Agreement.
- Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of dfuse includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public Customer Data provided by Customer to dfuse to enable the provision of the Services.
- Confidentiality Obligations. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
- Exclusions. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. For the avoidance of doubt, the obligations set out in this Section 7.1 shall be in addition to those set forth in any non-disclosure agreement entered into between the parties.
FEES AND PAYMENT TERMS
- Fees. Customer will pay dfuse the Subscription Fees specified in the applicable Subscription Order Form for the Services and Professional Services in accordance with the terms contained herein and in the Subscription Order Form (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Subscription Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.
- Price Changes. dfuse reserves the right to change the Subscription Fees at the end of the Subscription Period upon thirty (30) days prior notice to Customer (which may be sent by email).
- Taxes. Unless Customer provides dfuse with a valid tax exemption certificate or other information as may be required under applicable law with respect to any applicable taxes, Customer will pay dfuse for such taxes of the Services after being invoiced by dfuse. dfuse will remain responsible for all taxes that are applicable to any property or services acquired for use or consumption by dfuse in relation to the provision of the Services. For the avoidance of doubt, dfuse’s fees and expenses as set forth in this Agreement are exclusive of applicable taxes payable by Customer.
- Invoicing and Payment. Subscription Fees will be invoiced in advance and otherwise in accordance with the relevant Subscription Order Form. Unless otherwise stated in the Subscription Order Form, Fees are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with dfuse.
- Late Payment Charges. Unpaid amounts are subject to a finance charge of 1.5% per month (18% per year) on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate suspension or termination of Service.
- Suspension for Non-Payment. dfuse may immediately suspend Customer’s Subscription to use the Service if Customer fails to make any payment due in respect of the Service and does not cure such non-payment within ten (10) business days after receiving notice of such failure. Any suspension of the rights hereunder by dfuse under the preceding sentence shall not excuse Customer from its obligation to make all payment(s) under the Agreement.
- Payment Disputes. If Customer believes that dfuse has billed Customer incorrectly, Customer must contact dfuse no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to dfuse’s customer support department. Dfuse will not exercise its rights under Sections 8.5 or 8.6 hereof if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
- Audit Rights. dfuse shall have the right, with reasonable notice and during normal business hours, at dfuse’s sole expense and in as non-disrupting a manner as reasonably possible, to verify Customer’s compliance with Customer’s obligations hereunder through a remote or an on-site audit of Customer’s records, facilities and licensing processes by dfuse or a third party representative of dfuse. Customer shall permit up to one such audit per year, including once during the 12 month period following the termination of this Agreement for any reason. dfuse may use such audit reports solely to enforce its rights hereunder and shall otherwise treat audit reports and any information received in connection with such audits as Confidential Information. In the event that an audit establishes that Customer is in material breach of its obligations hereunder, Customer shall reimburse dfuse for the cost of the audit and shall promptly pay to dfuse all outstanding Fees.
TERM AND TERMINATION
- Term; Renewal. This Agreement commences on the Effective Date and shall continue until terminated earlier in accordance with the provisions of this Agreement or applicable law. This Agreement shall remain in effect and govern all Subscription Order Forms until (i) the end of the Subscription Period such Subscription Order Form, (ii) such Subscription Order Form is terminated by the Parties, or (iii) there has been full performance of the Parties’ respective obligations under such Subscription Order Form. Subscription renewal terms are specified in the Subscription Order Form.
- Subscriptions. Service Subscriptions commence on the earlier of the contract start date specified in the relevant Subscription Order Form and continue for the Subscription Period specified therein unless terminated earlier as provide for in this Agreement.
- Termination. In addition to any other remedies it may have, either Party may also terminate this Agreement upon thirty (30) days’ prior written notice (or on five (5) days’ notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTIES AND DISCLAIMER
- Limited Warranties. dfuse hereby represents and warrants to Customer that:
- during the Subscription Period the Service will perform materially in accordance with the Documentation therefor;
- the Services will not contain any Malicious Code;
- it owns or otherwise has sufficient rights in the Services and Documentation to grant to Customer the rights to access and use the Services and Documentation granted herein.
- General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. DFUSE MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE SERVICES; (III) ANY THIRD PARTY OFFERINGS; AND/OR (IV) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CUSTOMER DATA TRANSMITTED TO OR FROM DFUSE VIA THE SERVICE. DFUSE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. DFUSE DOES NOT EXPRESS AN OPINION ON NOR MAKE ANY WARRANTIES REGARDING THE FUTURE OR EXPECTED VALUE OF ANY CRYPTOCURRENCY. DFUSE DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY PROVIDERS OF THIRD PARTY OFFERINGS OR THIRD PARTY HOSTING PROVIDERS. NO REPRESENTATION OR STATEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, SUPPORT SERVICES AND PROFESSIONAL SERVICES NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY DFUSE.
- Internet Connectivity Disclaimer. dfuse makes the Service available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Service over the Internet. Customer is responsible for and shall ensure that Customer’s computer equipment and internet connection meets the minimum specifications published by dfuse in the Documentation and updated from time to time on dfuse’s website, and Customer shall periodically update Customer’s computer equipment and/or Internet connection to meet such minimum specifications. Customer hereby acknowledges that the Service may be interrupted due to (a) website or service downtime for scheduled maintenance at dfuse’s sole discretion, or (b) interruptions in Internet connectivity or other website or service downtime caused by circumstances beyond dfuse’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware of software not within dfuse’s control or network intrusions. Customer hereby acknowledges and agrees that dfuse shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases dfuse from any claims relating thereto.
INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY
- Indemnity. Subject to this Agreement, dfuse shall defend Customer against any claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Service and Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “IP Claim”) and pay all costs, damages and expenses (including reasonable legal fees) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement entered into by dfuse arising out of such IP Claim; provided, that Customer (a) promptly gives written notice of the IP Claim to dfuse; (b) gives dfuse sole control of the defense and settlement of the IP Claim (provided that dfuse may not settle or defend any IP Claim unless it unconditionally releases Customer of all liability); and (c) provides to dfuse, at dfuse cost, all reasonable assistance and information.
- Exceptions. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by dfuse, including Third Party Offerings, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery to Customer, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.
- Remedies. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by dfuse to be infringing, dfuse may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
INDEMNIFICATION BY CUSTOMER
- Customer will defend dfuse against any claim, demand, suit or proceeding made or brought against dfuse by a third party alleging that Customer Data, or Customer’s use of a Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against dfuse”), and will indemnify dfuse from any damages, legal fees and costs finally awarded against dfuse as a result of, or for any amounts paid by dfuse under a court-approved settlement of, a Claim Against dfuse, provided dfuse (a) promptly gives Customer written notice of the Claim Against dfuse, (b) gives Customer sole control of the defense and settlement of the Claim Against dfuse (except that Customer may not settle any Claim Against dfuse unless it unconditionally releases dfuse of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
LIMITATION OF LIABILITY
- Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
- Limitation of Liability for Direct Damages. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL DFUSE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
- Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS UNDER SECTIONS 11 OR 12 HEREOF, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.
- Application of Exclusions and Limitations. The foregoing limitations and exclusions of liability shall apply even if a party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply regardless of whether the action arose in contract, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or in tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of dfuse shall also apply to its officers, directors, employees, and agents as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries.
- Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, dfuse may assign this Agreement in its entirety (including all Subscription Order Forms), without consent of the Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. If the Customer is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of dfuse, then dfuse may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Export Laws. Customer acknowledges that the Services may be subject to U.S., Canadian and/or international rules that govern the export/import of software. Customer agrees to comply with all applicable international, federal and state laws that apply to the Services as well as end-user, end-use and destination restrictions issued by national governments.
- Force Majeure. Neither dfuse nor Customer shall be deemed to be in default of any provision of this Agreement (other than Customer’s obligation to pay amounts due to dfuse hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, civil disturbance, strikes, fires or other catastrophes.
- Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
- Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.
- Governing Law. This Agreement shall be governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to its conflict of laws provisions, and any dispute or conflict arising out or relating to this Agreement shall be submitted to the exclusive jurisdiction of the courts of the Judicial District of Montreal (Quebec, Canada). The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.
- Entire Agreement. This Agreement is the entire agreement between Customer and dfuse in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written license agreement with dfuse or a distributor of dfuse.
- Purchase Orders etc. Except for Subscription Order Forms accepted by dfuse, the terms and conditions of this Agreement shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Services and Documentation.
- Remedies. 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.
- Language of Agreement. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only. Les parties aux présentes confirment que c’est leur volonté que la présente convention de même que tous les documents, y compris les avis, s’y rattachant, soient rédigés en Anglais seulement.
- Signature, Counterparts, and Delivery. This Agreement may be signed electronically, including through DocuSign and similar applications. This Agreement may be signed in any number of counterparts (including counterparts by scanned or electronic signature) and each counterpart will be deemed an original; taken together, all counterparts will be deemed to constitute one and the same instrument. Delivery of a printed counterpart (whether or not the counterpart was signed electronically) or electronic delivery (including by email transmission or transmission over an electronic signature platform) of an executed counterpart of this Agreement are each as valid, enforceable and binding as if the signatures were upon the same instrument and delivered in person.