This Agreement (the “Agreement”) is entered into by and between Ledger Works, Inc. (“LWorks”) and you (“Customer”), collectively, the “Parties,” and sets forth the terms and conditions under which LWorks will provide Customer access to an LWorks offering on a Subscription basis. The Agreement will become effective when this Agreement is executed by authorized representatives of both Parties (the “Effective Date”). In consideration of the mutual promises herein, the Parties agree as follows:
1.1 “Access Protocols” means any tokens, passwords, access codes, smart contracts, technical specifications, protocols, or other relevant procedures that provide access to the LWorks Services.
1.2 “Confidential Information” means any and all information disclosed by either Party to the other which is designated as confidential, or which should otherwise be understood to be confidential, including but not limited to, the LWorks, Services, the Documentation, financial information, product plans, business plans, trade secrets, technology, or any other proprietary information, whether transmitted orally, in writing, or by any other media. Confidential Information does not include information the receiving Party can demonstrate was: (a) publicly available through no fault of the receiving Party, or (b) obtained from third parties not under confidentiality restrictions.
1.3 “Customer Data” means any content or data uploaded to or otherwise processed through the Service by Customer.
1.4 “Documentation” means any and all materials provided by LWorks, relating to the LWorks Services.
1.5 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.6 “LWorks Services” means the LWorks proprietary application programming interface and capabilities that enables Customer to access LWorks’ services.
1.7 “Services” means the services that LWorks provides to Customer hereunder, currently contemplated to comprise (i) access to the LWorks Services.
1.8 “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by LWorks as required for use of the Services. The current requirements are described in the Documentation.
2. SUBSCRIPTION PROGRAM LICENSE; PERIOD; RESTRICTIONS.
2.1 License. Except solely with respect to open source software LWorks makes available through the Services (“Open Source Software”), including language specific codes that enable easy communication with LWorks Services (the “Clients”), LWorks grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the subscription period (defined below) to access and use the features and functionality of the Services solely for Customer’s purposes, in accordance with the Agreement. Open Source Software, including Clients, and Customer’s use of such Open Source Software is subject to and governed by the applicable license accompanying, linked to or embedded in such Open Source Software (each an “Open Source License”) and LWorks grants Customer a license to use the Open Source Software to the fullest extent permitted by the applicable Open Source License.
(a) Customer shall not, and shall not permit any third party to: (i) modify or create any derivative works based on the Services or Documentation or any portion thereof; (ii) reproduce the Services or Documentation except as expressly permitted by this Agreement; (iii) sublicense, distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Services or Documentation or provide access to the Services to third parties on a service bureau basis or otherwise; or (iv) use the Services or Documentation other than as provided herein.
(b) Customer acknowledges and agrees that access to and use of certain features of the Services may be contingent upon the provision of certain Customer Data by Customer. Customer shall make good faith best efforts to ensure that all such Customer Data is accurate and complete.
2.3 Ownership. The Services, and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of LWorks and its suppliers. All rights in and to the Services, and Documentation not expressly granted to Customer in this Agreement are reserved by LWorks and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, the Documentation, or any part thereof.
3. LICENSE TO CUSTOMER DATA; RIGHTS IN DERIVATIVE DATA.
3.1 License to Customer Data. Customer grants LWorks a non-exclusive, worldwide, royalty-free, and fully-paid license to use the Customer Data for the purposes of providing the Services in accordance with the terms of this Agreement. Customer represents that it has all necessary rights, approvals and consents to make the Customer Data available to LWorks and that LWorks’ use of the same will not be unlawful or otherwise violate the rights of any third party.
3.2 Rights in Derivative Data. As between LWorks and Customer, Customer retains all right, title, and interest in and to the Derivative Data. “Derivative Data” means any modifications, analyses, reports, abstracts, enhancements, confirmations, verifications or derivative works of or regarding the Customer Data made by or on behalf of Customer. LWorks is hereby granted a non-exclusive, world-wide, perpetual, irrevocable, royalty-free, fully paid-up, fully sublicensable and transferable license to collect, use, and analyze the Derivative Data to improve and enhance the Services and for other diagnostic and development purposes for those or other offerings of LWorks, but solely to the extent the Derivative Data is de-identified and aggregated in a manner that does not identify Customer.
4. FEEDBACK. LWorks may periodically request that Customer provide, and Customer agrees to provide to LWorks, feedback regarding the use, operation, and functionality of the Services (“Feedback”). Such Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features. LWorks is hereby granted a non-exclusive, world-wide, perpetual, irrevocable, royalty-free, fully paid-up, fully sublicensable and transferable right and license to use and incorporate Feedback into any products and services, to make, use, sell, offer for sale, import, and otherwise exploit such products and services, and to otherwise use, copy, distribute, and otherwise exploit the Feedback without restriction.
5. TERM AND TERMINATION.
5.1 Subscription Period. LWorks will make the Services available to Customer commencing on the Effective Date until the earlier of (a) the start of any alternative or extended paid subscription for such Services, or (b) termination by LWorks at its sole discretion. Customer may terminate this Agreement upon thirty (30) days’ written notice to LWorks. If, at the end of the Subscription Period, Customer does not sign up for an alternative or extended paid subscription of the Services, the Agreement will automatically terminate unless LWorks agrees, in its sole discretion, to extend the Subscription Period.
5.2 Effects of Termination. Upon termination of this Agreement for any reason: (i) the rights granted to Customer hereunder will immediately terminate; (ii) Customer shall immediately discontinue any use of the Services and shall return or destroy all Documentation under its control; (iii) any outstanding payment obligations of Customer shall immediately become due and payable; and (iv) Sections 2.3, 3.2, 4, 5.2, 6, 8, and 10 will survive.
6.1 Non-Use and Non-Disclosure. Each Party agrees: (i) to use Confidential Information of the other Party solely in accordance with the provisions of this Agreement; and (ii) not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information of the other Party to any third party without the other’s prior written consent. Each Party shall safeguard the Confidential Information of the other Party using the same measures it uses to protect its own Confidential Information, but in no event shall either Party use less than reasonable care in safeguarding the Confidential Information of the other Party. Either Party may disclose Confidential Information of the other Party which is required to be disclosed by law or order of a court or other governmental entity; provided that such Party provides the other Party with prompt notice of such requirement, assists the other Party in seeking a protective order or other protection, and only discloses that portion of the Confidential Information that is required to be disclosed, and provided further that any information so disclosed retains its confidentiality protections for all other purposes.
6.2 Use of Services. Customer is responsible for maintaining the secrecy of any Access Protocols as the Confidential Information of LWorks.
6.3 Confidentiality of Agreement. The terms and existence of this Agreement are confidential and shall not be disclosed to third parties other than in confidence to the Parties’ accountants, counsel, and other advisors, and in confidence to potential acquirers. Additionally, LWorks shall have the right to disclose this Agreement and its terms to its investors and potential sources of funding.
6.4 Remedy. If either Party breaches, or threatens to breach the provisions of this Section 6, each Party agrees that the non-breaching Party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
7. Third-Party Service Providers.
7.2 Third-party public ledgers. The Services include access to and/or integration with a software application implemented on third-party public ledgers. LWorks cannot control and is not responsible for any losses or harms due to vulnerability or any kind of failure, abnormal behavior of software (e.g. smart contract), casualties due to developers’ or representatives delay or failure to report any issues with third-party public ledgers, including any other features of or inherent to public ledger technology in connection with or arising from third-party public ledgers.
8. WARRANTY DISCLAIMER, RESPONSIBILITY AND LIMITATION OF LIABILITY.
8.1 WARRANTY DISCLAIMER. THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LWORKS MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES AND DOCUMENTATION INCLUDING THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, AND LWORKS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
8.2 RESPONSIBILITY FOR USE. CUSTOMER, AND NOT LWORKS, SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF THE SERVICES, INCLUDING ANY USE OF THE RESULTS OF THE SERVICES AND FOR ANY COMPROMISE BY CUSTOMER.
8.3 RISKS RELATED TO PUBLIC LEDGER TECHNOLOGY. LWORKS IS NOT RESPONSIBLE FOR ANY LOSSES OR HARMS SUSTAINED BY CUSTOMER OR ANY END USER DUE TO VULNERABILITY OR ANY KIND OF FAILURE, BEHAVIOR OF SOFTWARE (E.G., SMART CONTRACT), OR ANY OTHER FEATURES OF OR INHERENT TO PUBLIC LEDGER TECHNOLOGY. CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE LEGAL REQUIREMENTS APPLICABLE TO PUBLIC LEDGER TECHNOLOGIES, PUBLIC NETWORKS, INFRASTRUCTURE SERVICES, AND DIGITAL ASSETS ARE EVOLVING, AND CUSTOMER HAS CONDUCTED AN INDEPENDENT INVESTIGATION OF ANY LEGAL REQUIREMENTS WHICH MAY APPLY TO CUSTOMER’S USE OF THE SERVICES AND THE RELEVANT RISKS AND UNCERTAINTIES.
8.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL LWORKS BE LIABLE TO CUSTOMER FOR INDIRECT, INCIDENTAL, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR FINANCIAL LOSS OR USE OR LOSS OF DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. IN NO EVENT SHALL LWORKS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY THE CUSTOMER IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE CLAIM, WHETHER AN ACTION IN CONTRACT, TORT, OR OTHERWISE. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
9.1 Fees. In consideration for the provision of the Services to Customer during the Subscription Program, Customer will pay to LWorks the amounts as documented on the website and paid as part of the subscription provisioning process.
9.2 Payment of Fees. Unless otherwise set forth in this Agreement, all fees are non-recoupable, noncancelable, and nonrefundable. LWorks shall be entitled to withhold performance and suspend access to the Services if Customer fails to use the Service consistent with these Terms of Services or this agreement is terminated by either party..
10. GENERAL PROVISIONS
10.1 Assignment. This Agreement may not be transferred or assigned by Customer, whether by operation of law or otherwise, without the prior written consent of LWorks. For purposes of this Section, a sale of assets, merger or other reorganization shall constitute an assignment. Any purported transfer or assignment in violation of this Section 10.1 shall be null and void. LWorks may freely assign this Agreement without Customer’s prior written consent. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
10.2 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, excluding its conflict of law provisions, and both Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in California.
10.3 Notices. All notices required to be sent hereunder shall be in writing and must be delivered, if to LWorks, by emailing firstname.lastname@example.org, and if to Customer, by emailing the e-mail address provided to LWorks during the registration process if available or by presentation on the Services website if available. If Customer has not provided an email or does not engage the Services website, then the customer acknowledges that LWorks has no ability to notify the Customer and requirements for Notice are waived by the Customer. LWorks may change its email address and/or address for receipt of notice by giving notice of such change to the other Party.
10.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
10.5 Waiver. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
10.6 Force Majeure. Neither Party shall be liable for any delay or failure in performance due to acts of God, earthquakes, shortages of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics (including COVID-19), and similar occurrences beyond its control, whether or not foreseeable. Performance times under this Agreement shall be extended for a period of time equivalent to the time lost because of a delay which is excusable under this provision.
10.7 Entire Agreement. This Agreement constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter herein. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.