Master Services Agreement
This Master Services Agreement (the “Agreement”) is effective as of [Execution Date], by and between BlocWatch, Inc., a Delaware Corporation, located at 10580 N. McCarran Blvd. Suite 115 PMB 148, Reno NV (“BlocWatch”), and [Customer], a [Corporation], located at [Address] (“Customer”).
1.1. Service. Subject to the terms of this Agreement, BlocWatch will provide access to BlocTrust and/or BlocMonitor, its proprietary systems for validating, monitoring, and reporting on blockchain implementations and resources, described in detail and accessible at https://www.blocwatch.com/ and https://app.blocwatch.com/ (the “Services”) to Customer as an online solution, including the most recent updates, features, and functionality.
1.2. License Grant. Subject to the terms and conditions of this Agreement, BlocWatch hereby grants to Customer a non-transferable, non-exclusive, non-sublicensable license to use the Services.
1.3. Access to Service. BlocWatch will make the Services available to Customer via specific url address. BlocWatch will provide Customer with user login and password to access Customer’s BlocWatch account (“Account”) through which Customer, or its authorized customer (“End User”), if applicable, can access the Services. Customer must provide to BlocWatch all information BlocWatch requires to allow BlocWatch to create the Account, which information must be correct, current, and complete.
1.4. Login and Password Security. Customer is responsible for maintaining the confidentiality of the user login and password Customer is given to access the Account, and Customer is solely responsible for all activities that occur under the Account. Customer shall notify BlocWatch immediately of any unauthorized use of Customer’s user login and password if and to the extent Customer has knowledge of or otherwise becomes aware of such unauthorized use.
1.5. Permitted Use.
a. Customer may use the Services solely to monitor and manage Customer’s cloud provider accounts. Customer agrees that Customer will not, nor will Customer allow or facilitate a third party to, directly or indirectly reproduce, reverse engineer, or modify any software or technology incorporated in the Services (“Technology”).
b. Customer agrees that Customer will not, nor will Customer allow or facilitate a third party to modify, alter or delete any of the copyright, trademark, or other proprietary notices displayed on, embedded in, or affixed to the Services or the Technology.
c. Excluding prior written permission from BlocWatch, Customer agrees that Customer will not, nor will Customer allow or facilitate a third party, to use any automated means, including, without limitation, agents, robots, scripts or spiders, to access Customer’s Account or to monitor or copy the Services or the Technology.
d. Excluding prior written permission from BlocWatch, Customer agrees that Customer will not, nor will Customer allow or facilitate a third party to, (i) use any device, software or routine to interfere with the proper working of the Services, or (ii) use the Services or the Technology in any manner other than as permitted by this Agreement.
1.6. Availability of Services.
a. BlocWatch will exercise commercially reasonable efforts to provide the Services on an uninterrupted basis. Customer acknowledges and agrees, however, that BlocWatch cannot ensure the availability of the Services on a 100% continuous or uninterrupted basis.
b. Notwithstanding the foregoing, BlocWatch agrees to make the Services available in accordance with the Service Level Availability terms set forth at https://www.blocwatch.com/legal/sla/.
c. Customer, at its sole cost and expense, shall be solely responsible for providing, maintaining, and ensuring that all hardware, software, electrical, and other physical requirements are met for Customer’s use of the Services.
d. BlocWatch may modify and update the Services at any time with or without notice to Customer so long as modification does not entail a material diminishment of service.
2. FEES AND PAYMENT TERMS
2.1. Fees. Customer will pay the Fees described in the Service Schedule.
2.2. Invoicing; Payments. During the Term of this Agreement, BlocWatch will invoice Customer according to the payment terms described in the Service Schedule. Customer will pay such invoices within 30 days of its receipt of such invoice.
2.3. Late Payment. In the event that BlocWatch does not receive payment by the date on which the payment is due, BlocWatch shall have the right to assess a late payment fee, equal to 1.25% of the outstanding balance or the maximum rate permitted by law, and may suspend, interrupt, or terminate services.
2.4. Taxes. Customer shall be solely responsible at any time for paying all federal, state, local, foreign, or other taxes, duties, tariffs or other charges that are invoiced to Customer, however designated, arising from or based upon this Agreement, or the transactions contemplated by it, except for taxes based on BlocWatch’s income.
3. TERM AND TERMINATION
3.1. Term. The Initial Term of this Agreement will commence upon the execution of this Agreement and be effective for one (1) calendar year (“Initial Term”) unless separately provided on the Service Schedule. At the expiration of the Initial Term, this Agreement will automatically renew under identical terms and conditions (each, a “Renewal Term,” and collectively with the Initial Term the “Term”) unless separately provided on the Service Schedule. Notwithstanding the foregoing, this Agreement may not be terminated as long as one (1) Service Schedule remains in effect.
3.2. Termination For Cause. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if: (i) the other party materially breaches any term of this Agreement and fails to cure such breach, which is a curable breach, within thirty (30) days after receipt of the non-breaching party’s written notice of such breach; (ii) the other party materially breaches any term of this Agreement which is not capable of cure; (iii) the other party dissolves, becomes insolvent, or makes a general assignment for the benefit of its creditors; (iv) a voluntary or involuntary petition or proceeding is commenced by or against the other party under federal, state, or foreign bankruptcy laws; or (v) the other party becomes insolvent, is unable to pay its debts as they become due, or ceases to conduct business in the normal course. Termination of this Agreement under this Section 3.2 will be without prejudice to any other remedy which may be available to a party under applicable law.
3.3. Termination Without Cause. Unless separately provided on the Service Schedule, either party may terminate this Agreement without cause only by declining renewal. The party declining renewal must inform the other party in writing of its intent to decline renewal at least sixty (60) days before the end of the Term.
3.4. Effect of Termination. Upon termination of this Agreement, all rights and licenses granted under this Agreement shall terminate.
a. In the event of termination for Customer’s breach of this Agreement, Customer shall not be entitled to a refund or credit of any of the fees described in Section 2, and BlocWatch will promptly issue an invoice for fees, if any, payable by Customer with respect to the then-current term.
b. In the event of termination for BlocWatch’s breach of this Agreement, BlocWatch shall refund (within thirty (30) days after such termination) a pro-rata portion of pre-paid fees described in the Service Schedule.
4. CONFIDENTIALITY; CUSTOMER DATA; SECURITY
a. “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms of this Agreement, any technical or other documentation, logins, passwords, and access keys, and any and all information regarding Customer’s business, products, and services are the Confidential Information of Customer. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its affiliates, employees, consultants, agents, and professional advisers who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants, and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 4; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. Disclosure of Confidential Information shall be permitted if such Confidential Information is required to be disclosed by law or by any rule, regulation, or order of a person having jurisdiction or pursuant to a final order or judgment of a court of competent jurisdiction, and in such case the Parties will cooperate with one another to attempt, if possible, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded to such Confidential Information prior to disclosing such Confidential Information. Further, this Section 4 will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
b. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
4.2. Customer Data.
a. “Customer Data” means any business information or other data of any type which is provided by Customer to BlocWatch, including without limitation information which Customer inputs or provides to BlocWatch for inputting into the Services or related deliverables, (b) sales and marketing information provided by Customer to BlocWatch, and © the Account Information.
b. Rights in Customer Data. BlocWatch agrees that it does not have any rights to the Customer Data except as expressly set forth herein. Subject to the terms of this Agreement, Customer hereby grants to BlocWatch a non-exclusive, worldwide, royalty- free right to use, copy, store, transmit and display the Customer Data solely to the extent necessary to provide and improve Services.
a. BlocWatch represents and warrants that it follows industry-standard policies and provides software features and internal practices to protect the security and integrity of Customer Data (including, without limitation, employee data). BlocWatch will notify Customer as soon as possible via telephone, to be followed-up in writing, of any actual, suspected, or threatened Security Incident (as defined in Section 4.3.b.) involving such Customer Data. The notification provided to Customer shall include, if known, and to BlocWatch’s knowledge as of the time of notice: (i) the general circumstances and extent of any unauthorized access to Customer Data or intrusion into the computer systems or facilities on or in which Customer Data is maintained; (ii) which categories of Customer Data were involved; (iii) the identities of all individuals whose company personal information was affected; and (iv) steps taken to secure the data and preserve information for any necessary investigation. The notification required to be delivered to Customer under this Section shall be delivered promptly and in no event later than 72 hours after BlocWatch learns of any such actual, suspected or threatened Security Incident. BlocWatch shall not delay its notification to Customer for any reason, including, without limitation, investigation purposes. BlocWatch shall cooperate fully with Customer in investigating and responding to each successful or attempted security breach.
b. “Security Incident” is when BlocWatch knows or has reason to know that: (A) BlocWatch has experienced an incident resulting in the unauthorized acquisition of unauthorized use of unencrypted Customer Data, or encrypted Customer Data and the confidential process or key that is capable of compromising the security, confidentiality or integrity of Customer Data that creates a substantial risk of identity theft or fraud; or (B) Customer Data was acquired or used by an unauthorized person or used for an unauthorized purpose. In the event of any Security Incident, BlocWatch shall assist Customer to provide notification and take other reasonable actions that Customer, in BlocWatch’s reasonable discretion, determines necessary in mitigating the effects of such Security Incident.
5. INTELLECTUAL PROPERTY
BlocWatch owns all right, title, and interest, including without limitation, all intellectual property, trademarks, service marks, trade names, and other rights (except for Customer Data or third-party content, if any, therein), in and to the Services and Technology. Use of the Services and Technology for any purpose not set forth in this Agreement is prohibited.
6. BLOCWATCH WARRANTIES
BlocWatch represents and warrants that:
a. it has all rights necessary to authorize access to the Services or related deliverables and information;
b. it has sufficient rights in the Services or related deliverables and data to authorize Customer to process, distribute, and display the Services or related deliverables and data as contemplated by this Agreement and the functionality of the Services or related deliverables;
c. it has all rights necessary to provide the Services or related deliverables and data to Customer for the purposes of this Agreement;
d. the Services or related deliverables will be, to BlocWatch’s knowledge, free of any virus or malicious code; and
e. the Services and related deliverables shall not infringe upon or violate any intellectual property rights or any other rights of any nature of any third party.
7. DISCLAIMER OF WARRANTIES
BLOCWATCH PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE PROVIDED IN SECTION 6, BLOCWATCH DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BLOCWATCH DOES NOT WARRANT THAT THE SERVICE WILL BE (1) UNINTERRUPTED, (2) FREE FROM INACCURACIES OR ERRORS, OR (3) WILL MEET CUSTOMER’S REQUIREMENTS.
8. LIMITATIONS ON LIABILITY
EXCEPT FOR SECTION 10, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS. NOTWITHSTANDING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY INFRINGEMENT OR MISAPPROPRIATION OF BLOCWATCH’S INTELLECTUAL PROPERTY MAY CAUSE IRREPARABLE HARM TO BLOCWATCH. AS A RESULT THEREOF, IN ADDITION TO ANY OTHER REMEDIES AVAILABLE, BLOCWATCH SHALL BE ENTITLED TO SEEK INJUNCTIVE AND OTHER EXTRAORDINARY RELIEF CONCERNING ANY THREATENED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF BLOCWATCH’S INTELLECTUAL PROPERTY.
EXCEPT FOR SECTION 10, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
a. BlocWatch will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party claiming (i) that BlocWatch breached the Confidentiality clause herein, (ii) that Customer’s use of the Services in accordance with this Agreement violates an applicable law, (iii) or that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees, and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer, provided Customer (a) promptly give BlocWatch written notice of the Claim Against Customer, (b) give BlocWatch sole control of the defense and settlement of the Claim Against Customer (except that BlocWatch may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability and is limited to payment of money damages). If BlocWatch receives information about an infringement or misappropriation claim related to the Services, BlocWatch may in its discretion and at no cost to Customer (i) modify the Services so that they no longer infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the Services in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for the Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.
b. Exclusive Remedy. This Section 10 states BlocWatch’s sole liability to and the Customer’s exclusive remedy against BlocWatch for any type of claim described in this Section 10.
a. Entire Agreement. This Agreement, together with any Exhibit(s) and any Service Schedules hereto, represents the entire agreement and understanding of the parties on the subject matter of this Agreement and supersedes all previous agreements, arrangements, communications, and understandings relating to that subject matter. This Agreement may be amended, modified, superseded, or cancelled, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement, or, in the case of waiver, by the party or parties waiving compliance.
b. Independent Contractor Status. The relationship of Customer to BlocWatch is that of an independent contractor, and nothing herein shall be construed or deemed as creating any other relationship.
c. Conflicting Terms. Except as otherwise specifically provided in this Agreement, in the event of a conflict between the terms and conditions of this Agreement and End-User Terms, as they apply to the relationship between BlocWatch and Customer, the terms and conditions of this Agreement shall govern.
d. Third-Party Web Sites and Content. Any third-party web sites accessible through the Services are not controlled by BlocWatch. Accordingly, BlocWatch makes no warranties regarding such third-party web sites and content, and will not be liable for any loss or damage caused by Customer’s use of or reliance on such websites or content. Customer’s use of third-party websites and content is at Customer’s own risk. The inclusion of third- party content or a link to a third-party web site in the Services does not imply any endorsement by BlocWatch.
e. Integration. A Service Schedule that is signed by both parties and refers explicitly to this Agreement (“Service Schedule”) will be deemed an integrated part of this Agreement.
f. Governing Law. This Agreement will be subject to and construed in accordance with the laws of the State of New York, excluding its rules regarding conflicts of law.
g. Arbitration. Any controversy or claim between the parties arising out of or relating to this Agreement or the breach hereof shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be held in the city of Rochester, New York.
h. No Assignment. This Agreement may not be assigned by either party without the prior written approval of the other party and any purported assignment in violation of this Agreement shall be void; provided, however, that either party may assign this Agreement in connection with the transfer, directly or indirectly, of more than fifty percent (50%) of such party’s outstanding voting securities or of all or substantially all of the assets or business of such party.
i. Severability. If any provision of this Agreement is deemed to be invalid or inoperative for any reason, that part shall be deemed modified to the extent necessary to make it valid and operative, or if it cannot be so modified, then severed, and the remainder of this Agreement shall continue in full force and effect as if this Agreement had been signed with the invalid portion so modified or eliminated.
j. Publicity. During the Term of this Agreement, BlocWatch may list Customer as a customer and use Customer’s name and logo on the Site, on publicly available customer lists and in media releases.
k. Counterparts; Signature Pages. This Agreement may be executed and delivered in multiple counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. In addition, this Agreement may be executed and delivered by facsimile and with separate signature pages with the same effect as though all parties had executed and delivered the same original signature page.
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