These Design Partner Terms (together with Schedule A, this “Agreement”), dated as of the day you click a box agreeing to them or sign an order, quote, or another document incorporating these terms by reference (“Effective Date”), is made by and between Ionic Labs, Inc. d/b/a Shadow, a Delaware corporation (“Shadow”) and the entity on whose behalf the individual accepting this Agreement accepts this Agreement (“Design Partner”). The individual accepting this Agreement hereby represents and warrants that it is duly authorized by the entity on whose behalf it accepts this Agreement to so accept this Agreement.
Within the protection of a confidential relationship and on the following terms, Shadow is willing to provide Design Partner with early access to Shadow’s proprietary hosted software-as-a-service offering for end to end cryptocurrency and blockchain data platform management and transit management to third party tools (the “Platform”) for the purpose of developing and refining the Platform as further provided below (the “Evaluation”). Design Partner desires to provide input and feedback to Shadow for the purposes of Platform development and improvement for Design Partner’s eventual benefit, and is willing to enter a confidential relationship and to use and test the Platform and report to Shadow on the performance of the Platform.
1. Use of Platform; Restrictions.
(a) Subject to the terms of this Agreement, Design Partner may access and use the Platform during the Term (as defined below) on a nonexclusive, nontransferable, nonsublicensable, and revocable basis, solely in connection with the Evaluation.
(b) Design Partner shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Platform (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Platform; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Platform; (iv) use the Platform for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Platform or any portion thereof; (vi) use the Platform to build an application or product that is competitive with any Shadow product or service; (vii) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform; (viii) bypass any measures Shadow may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Service); (ix) use the Platform in a manner that places an unreasonable burden on the Platform or Shadow; or (x) use the Platform for any unlawful purpose or in violation of any applicable laws.
(c) Design Partner is responsible for all of Design Partner’s activity in connection with the Platform. Design Partner (i) shall use the Platform in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Design Partner’s use of the Platform (including those related to data privacy, international communications, export laws, and the transmission of technical or personal data laws), and (ii) shall not use the Platform in a manner that violates any third party intellectual property, contractual or other proprietary rights.
(d) Design Partner acknowledges that the Platform is currently under development and may not be available for use by Design Partner for portions of or all of the Term.
(e) Shadow is under no obligation to provide technical support under the terms of this Agreement, and provides no assurance that any specific errors or discrepancies in the Platform will be corrected (to the extent the Platform becomes available for use) Design Partner understands that Shadow may modify the Platform and/or cease supporting old versions or releases of the Platform at any time in its sole discretion. Notwithstanding the foregoing, Shadow shall make commercially reasonable efforts to fulfill reasonable support requests of Design Partner in connection with its provision of the Platform.
2. Design Partner Commitments. Design Partner acknowledges and agrees it will make commercially reasonable efforts to complete the Commitments specified in Schedule A (the “Commitments”).
3. Design Partner Data; Deletion. “Design Partner Data” means any data, information or other material submitted, posted, or otherwise transmitted by or uploaded by or on behalf of Design Partner to the Platform, including but not limited to data regarding Design Partner’s logging of smart contract activities. For the avoidance of doubt, Design Partner Data does not include any data processed by the Platform, including but not limited to log and observability data. Shadow shall use commercially reasonable efforts to maintain the security and integrity of the Platform and the Design Partner Data. Design Partner acknowledges and agrees that the Platform may be subject to limitations on the length of time that Design Partner Data will be stored, and the amount of Design Partner Data that may be stored, and that Design Partner Data which exceeds either of such limitations may be automatically deleted by Shadow. Shadow may delete all Design Partner Data upon termination or expiration of this Agreement to the extent permissible under applicable law. In addition, and notwithstanding anything to the contrary, Design Partner acknowledges and agrees that Shadow may (i) internally use and modify Design Partner Data for the purposes of (A) providing the Platform to Design Partner and Users and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use, retain and make available Aggregated Anonymous Data for Shadow’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Shadow’s products and Platform). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Shadow in connection with Design Partner’s use of the Platform, but only in aggregate, anonymized form which can in no way be linked specifically to Design Partner. Design Partner may freely export Design Partner Data off the Platform, provided that such export may incur Platform fees specified and set by Shadow. Once exported, Design Partner may freely use, sell, transfer, and otherwise exploit Design Partner data for any lawful purpose at its discretion.
4. Confidential Information. From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without use of, reference to, or reliance upon the disclosing party’s Confidential Information. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
5. Ownership; Feedback. As between the parties, Shadow retains all right, title, and interest in and to the Platform, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Shadow for the purposes of this Agreement, including any copies and derivative works of the foregoing, and no rights or licenses are granted by Shadow except as expressly and unambiguously set forth in this Agreement. Any software which is distributed or otherwise provided to Design Partner hereunder shall be deemed a part of the Platform and subject to all of the terms and conditions of this Agreement. Design Partner agrees to provide the oral and written feedback specified in Schedule A (“Feedback”). Feedback, even if designated as confidential by Design Partner, shall not create any confidentiality obligation for Shadow notwithstanding anything else. Notwithstanding anything else, Design Partner shall, and hereby does, grant to Shadow a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Design Partner shall additionally, and hereby does, grant to Shadow a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use Design Partner’s name and any marks to identify Design Partner as a customer of Shadow in marketing materials, customer lists, investor presentations, and on its website. Nothing in this Agreement will impair Shadow’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Design Partner may develop, produce, market, or distribute.
6. Warranty Disclaimer. THE PARTIES ACKNOWLEDGE THAT THE PLATFORM IS EXPERIMENTAL IN NATURE AND ARE STILL UNDER DEVELOPMENT, AND THAT THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SHADOW EXPRESSLY DISCLAIMS ANY GUARANTEE OF SPECIFIC RESULTS OR OUTCOMES BASED ON USE OF OR RELIANCE ON THE PLATFORM.
7. Limitation of Remedies and Damages. IN NO EVENT SHALL SHADOW NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR PLATFORM, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR PLATFORM (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100.
8. Term and Termination. The term of this Agreement commences on the Effective Date and terminates on the earlier of: (a) Shadow’s delivery of written notice that the Evaluation has been completed (as determined by Shadow in its sole discretion; or (b) the completion of the Evaluation Period identified in Schedule A (the “Term”). The parties may at any time mutually agree to extend the Term in writing. Upon any expiration or termination, Design Partner shall immediately return anything Design Partner has obtained in connection with Platform, together with any and all documents, notes and other materials respecting the Platform to Shadow, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, and (ii) all rights, obligations and licenses shall cease (except that (A) all obligations that accrued prior to termination and remedies for breach shall survive, and (B) the following provisions shall survive: Sections 1(b) and Sections 4 through 10).
9. General. This Agreement represents the entire agreement between Design Partner and Shadow with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Design Partner and Shadow with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York, New York. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Design Partner, and any such attempted assignment or transfer shall be void and without effect. Shadow may freely assign or delegate its rights and obligations hereunder in whole or in part. Shadow may use Design Partner’s name and logo and disclose general information regarding the process, findings or conclusions of the Evaluation in case studies, investor and other presentations, publications, and other marketing materials (and Design Partner will reasonably cooperate with Shadow in connection with such activities, including by providing one or more quotes for such materials upon request). No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Design Partner acknowledges and agrees that due to the unique nature of Shadow’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Design Partner or third parties to unfairly compete with Shadow resulting in irreparable harm to Shadow, and therefore, that upon any such breach or threat thereof, Shadow shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
Schedule A
Fees; Design Partner Commitments
1. Pricing and Fees: Fees are due and payable within net (30) days of receipt of an invoice, at a payment method specified by Shadow in writing. Fees shall be specified in an order or quote provided by Shadow in writing. If Design Partner pays fees via a payments solution offered by Stripe, Inc. Design Partner agrees it shall be bound by the applicable Stripe terms located at stripe.com/legal. Each party shall bear its own taxes in connection with its performance under the Agreement.
2. Evaluation Period: As specified in the order or quote.
3. Design Partner Commitments: Design Partner shall appoint a primary contact (“Sponsor”) to liaise with Shadow regarding the Platform and deliver all required Feedback specified below. The Sponsor shall be specified in the order or quote. During the Term, Sponsor and other users of Design Partner may provide Feedback based on their experience, and make specific feature and functionality requests.
