The parties hereby agree as follows:
1.2 “Confidential Information” means: (i) with respect to Nirvana Labs, the Platform, the Nodes, the Aggregate Data, the Usage Data, the Documentation, and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, products, services, or data; and (ii) with respect to you, your Nodes, the Customer Materials and any non-public information or material regarding you, your legal or business affairs, financing, employees, customers, properties, or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
1.3 “Customer Materials” means any data, information, and other materials that you or your Authorized Users submit to the Platform, including, without limitation, the personal information (such as name, email address, and other identifying information) of you and your Authorized Users.
1.4 “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Platform and Nodes as Nirvana Labs may make available to you from time to time, whether in a written or electronic form.
1.5 “Fees” means the fees we charge for your access to and use of the Platform, on a per Node per month basis, as listed on our price list found at https://nirvanalabs.io/pricing.
1.6 “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform or the Nodes, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform or Nodes to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Platform or Nodes.
1.7 “Node” means an individual database instance in a blockchain containing a copy of the full ledger of such database, and capable of validating transactions within such database.
2. ACCESS AND USE.
2.3 Service Levels and Support. During the Term, Nirvana Labs, or our contractors, shall host the Platform and Nodes, periodically monitor the Platform and Nodes to optimize performance thereof, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers. Nirvana Labs uses commercially reasonable efforts to respond to support questions submitted through the Platform, Nodes, or by email to [email protected].
3. TERM; TERMINATION.
4.1 Purchasing Nodes. You or your Authorized Users may purchase any number of Nodes to be developed, launched, and managed via the Platform. Fees are based on a per Node per month or yearly subscription, as set forth on our price list.
4.2 Recurring Payments. Unless otherwise provided in an Order, at the time of your first purchase on the Platform, you will be required to provide valid payment information. Unless otherwise provided in an Order, by purchasing a subscription to a Node, you acknowledge and agree that each Node has an initial and recurring payment charge at the then-current per Node per month Fee, and you agree that Nirvana Labs, or its third-party payment processor, may submit monthly charges to your chosen payment method without further authorization from you, unless and until you provide written notice (via email or through the Platform) to Nirvana Labs that you wish to cancel your subscription or change your payment method. You may cancel a subscription on a per Node basis at any time upon notice to Nirvana Labs, and the effective date of such cancellation shall be the last day of the month during which you provide such notice. You further accept responsibility for all recurring charges prior to cancellation, including, where applicable, any charges processed by Nirvana Labs or its third-party payment processor after the expiration date of your payment card.
4.3 Payment Method. You agree to always keep a valid payment card on file with Nirvana Labs during the Subscription Term. If your payment card expires or if you need to change the payment card on file at any time, you must notify Nirvana Labs immediately.
5. INTELLECTUAL PROPERTY.
The trademarks, service marks, and logos used and displayed on the Platform or Nodes may be registered and/or unregistered trademarks or service marks of ours of our licensors (collectively, the “Trademarks”). Nothing on the Platform or Nodes should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Trademarks inures to the benefit of us or our licensors.
5.3 Aggregated Data. We monitor the performance and use of the Platform and Nodes by you and your Authorized Users, and we collect data in connection therewith, including, without limitation, date and time that you access the Platform and Nodes, the portions or pages of the Platform and Nodes visited, the frequency and number of times such pages are accessed, and other usage data (the “Usage Data”). We may combine this Usage Data with other data (including Customer Materials), and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the “Aggregate Data”). Aggregate Data does not identify you or any individual. Once Company Materials are aggregated and anonymized, they are no longer deemed Company Materials hereunder and are considered Aggregate Data. You hereby agree that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data for any lawful purpose.
6. CONFIDENTIALITY; FEEDBACK.
6.2. Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 6.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in any act which violates Section 6.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 6.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
6.3 Feedback. During the Term, you or your Authorized Users may elect to provide us with feedback, comments, and suggestions with respect to the Platform and Nodes (“Feedback”). You hereby agree that Nirvana Labs will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback in perpetuity without compensation or attribution to you or any Authorized User.
7. REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER.
7.1 Representations and Warranties.
7.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM, WEBSITE, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED BY NIRVANA LABS HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER NIRVANA LABS NOR ANY OF OUR LICENSORS MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THESE TERMS OF SERVICE, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT NIRVANA LABS AND OUR LICENSORS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
9.3 Procedure. The indemnification obligations set forth in Section 9.1 and Section 9.2 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim, provided, however, that any failure of the indemnified Party to provide prompt written notice pursuant to this Section 9.3 shall excuse the indemnifying Party only to the extent that it is prejudiced thereby; (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party's approval.
11. CLASS ACTION WAIVER. You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
13. GENERAL PROVISIONS.
13.1 Cooperation. You acknowledge that Nirvana Labs and certain of its Affiliates are obligated to report certain information to relevant authorities. As a result, you agree to promptly provide such information or cooperation as Nirvana Labs may reasonably request in order to address any matters with, or inquiries by, any regulatory authority related to the Services. You will cooperate with Nirvana Labs' due diligence assessment process upon initial onboarding and from time to time during the term of this Agreement. Such cooperation will include, but not be limited to, you responding to Nirvana Labs questionnaires and providing supporting documentation and in limited cases, access to select personnel. Nirvana Labs will not request due diligence questionnaire responses from you more than once in any given twelve (12) month period unless otherwise required by Nirvana Labs to comply with its legal or regulatory obligations. You agree to notify Nirvana Labs of any material changes to their questionnaire responses.
13.2 External Sites. The Platform and Nodes may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
13.6 Independent Contractors. The parties hereto are independent contractors. Neither party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other party for any purpose, and neither party will have any right, power, or authority to obligate the other party.
13.12 Export. You will not export or re-export, either directly or indirectly, the Platform or Nodes, or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, you will not permit Authorized Users or any third parties to access or use the Platform or Nodes in violation of any United States export embargo, prohibition, or restriction.