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Platform Agreement

Last updated August 22, 2023.
This Platform Agreement (this "Agreement" ), effective as of [DATE] (the “ Effective Date”), is by and between Terrace and [Customer Name], a [Location] [Corporation/Individual] ("Customer"). This Agreement includes and incorporates the Order Form attached as Exhibit A, and any additional Order Forms incorporated by reference. Terrace and Customer may be referred to herein collectively as the "Parties" or individually as a "Party".
In consideration of the mutual covenants, terms, and conditions below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. BACKGROUND
Terrace operates the Platform (defined below) and provides access to its customers. Customer is a financial institution or accredited investor and desires to access the Platform, and Terrace is willing to provide such access, subject to the terms and conditions of this Agreement.
2. PLATFORM; ACCESS AND USE
a. Platform. Subject to the terms and conditions of this Agreement, Terrace hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 14) right to Use the Platform and Documentation during the Term, solely to access to the Terrace-approved exchanges and/or Decentralized Finance ("DeFi") protocols offered via the Platform, in connection with Customer’s Transactions.
b. Use Restrictions. Customer will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Platform or the Documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Platform, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Platform to any other person or entity, or otherwise allow any person or entity to use the Platform for any purpose other than for the benefit of Customer in accordance with this Agreement; (iv) use the Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law; (v) access or search the Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Platform features provided by Terrace for use expressly for such purposes; or (vi) use the Platform or Terrace Confidential Information in order to conduct benchmarking or competitive analysis with respect to competitive or related products/services, or use the Platform or Terrace Confidential Information in order to develop, commercialize, license or sell any product/service or technology that could, directly or indirectly, compete with the Platform.
c. Authorized Users. Customer may permit Authorized Users to Use the Platform, provided that Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the Platform and their compliance with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations and the restrictions set forth in Section 1(b). Customer will not allow any person or entity, other than its Authorized Users, to Use the Platform on its behalf and is responsible for all use of the Platform on its account, regardless of whether authorized.
d. Third-Party Services. Certain features and functionalities within the Platform may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology, and content (collectively, "Third-Party Services") through the Platform. Terrace does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Platform.
e. Cooperation. In connection with Terrace’s provision of the Platform, Customer will: (i) fully cooperate with Terrace, including working with Terrace and responding to Terrace’s requests, as to enable and permit Terrace to successfully perform its obligations and exercise its rights hereunder; (ii) provide Terrace with all data, information, and materials required and reasonable requested by Terrace in connection with its provision of the Platform (and other performance) under this Agreement, including the data set forth in the Customer Data Obligations Section of the Order Form; and (iii) perform Customer’s duties and tasks under this Agreement, and such other duties and tasks as may be reasonably required to permit Terrace to perform its obligations hereunder. Customer will be responsible for ensuring that all such data, information, and materials are and remain accurate and complete. Customer acknowledges and understands that Terrace’s performance of its obligations under this Agreement (including the provision of the Platform and performance of Professional Services (if any)) depend on Customer’s timely performance of its obligations under this Agreement, including this Section 2(e), and that Terrace shall not be liable or responsible for any delays or failures to perform its obligations under this Agreement to the extent caused, directly or indirectly, in whole or in part, by Customer’s failure to perform it obligations hereunder.
f. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Terrace reserves and, as between the Parties will solely own, the Terrace IP and all rights, title and interest in and to the Terrace IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
g. Feedback. From time to time Customer or its employees, contractors, or representatives may provide Terrace with suggestions, comments, feedback or the like with regard to the Platform (collectively, "Feedback"). Customer hereby grants Terrace a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Terrace’s current and future business purposes, including, without limitation, the testing, development, maintenance and improvement of the Platform.
3. FEES AND PAYMENT
a. Fees. Customer will pay Terrace the non-refundable fees (including applicable Gas Fees per Transaction) set forth in the relevant Order Form in accordance with the terms therein ("Fees") and without offset or deduction. Terrace reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon sixty (60) days’ prior notice to Customer (which may be sent by email). Except as otherwise provided in the relevant Order Form, Terrace will issue monthly invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than ten (10) days after the date of such invoice. If Customer has signed up for automatic billing, Terrace will charge Customer’s selected payment method (such as a credit card, debit card, or other method available in Customer’s home country) for any Fees on the applicable payment date, including any applicable taxes. If Terrace cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Terrace will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, Terrace may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.
b. Payments. Payments due to Terrace under this Agreement must be made in U.S. dollars (unless otherwise set forth in the Order Form), either through automatic billing as set forth in Section 3(a), or otherwise by check, wire transfer of immediately available funds to an account designated by Terrace or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Terrace may suspend Platform until all payments are made in full. Timely payment is a condition precedent to Customer’s rights and Terrace’s obligations. Customer will reimburse Terrace for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
c. Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Terrace hereunder, other than any taxes imposed on Terrace’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Terrace hereunder, Customer will pay an additional amount, so that Terrace receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
4. CONFIDENTIAL INFORMATION
a. As used herein, "Confidential Information" means any information that one Party (the "Disclosing Party") provides to the other Party (the "Receiving Party") in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
b. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Terrace may use and modify Confidential Information of Customer in de-identified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
c. The terms and conditions of the Order Form will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
5. CUSTOMER MATERIALS AND DATA
a. Terrace acknowledges that, as between Customer and Terrace and except as set forth in Section 5(b), Customer owns and retains all right, title and interest in and to all Customer Materials.
b. Customer hereby grants Terrace a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Platform, Professional Services and Terrace’s other related products, services and technologies during the Term.
c. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for (a) Customer’s receipt and Use of the Platform, including with Miners, and (b) the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement; and (ii) Terrace’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
6. REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
7. INDEMNIFICATION
a. Terrace Indemnification. Subject to Section 7(b), Terrace will defend Customer against any claim, suit or proceeding brought by a third party ("Claims") alleging that Customer’s Use of the Platform infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Terrace (including reasonable attorneys’ fees) resulting from such Claim.
b. Exclusions. Terrace’s obligations under Section 7(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Platform that have been provided by Terrace; (iv) modifications to the Platform by anyone other than Terrace; (v) combinations of the Platform with software, data or materials not provided by Terrace; or (vi) Customer’s continued Use of a prior version of the Platform that has been superseded by a non-infringing version subsequently released by Terrace.
c. IP Remedies. If Terrace reasonably believes the Platform (or any component thereof) could infringe any third party’s Intellectual Property Rights, Terrace may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Platform, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If Terrace determines that neither alternative is commercially practicable, Terrace may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Terrace will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 7 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Platform.
d. Customer Indemnification. Customer will defend Terrace against Claims arising from (i) any Customer Materials, including, without limitation, any Claim that the Customer Materials infringe, misappropriate, or otherwise violate any third party’s Intellectual Property Rights, or that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule, or regulation; (ii) any of Customer’s products or services; (iii) Use of the Platform by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation; and (iv) negligence, willful misconduct, fraud, or violation of law (including with regard to Customer’s use of the Platform in connection with this Agreement), and in each case, will indemnify and hold harmless Terrace against any damages and costs awarded against Terrace or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
e. Indemnification Procedures. The Party seeking defense and indemnity (the "Indemnifying Party") will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the "Indemnifying Party") of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
8. COMPLIANCE OBLIGATIONS
a. Each Party will comply with: (i) all applicable laws, rules, regulations, and orders of any federal, state, local, or other government; and (ii) any written policies that any applicable financial services companies that Terrace utilizes to offer the Services may provide to the Parties (collectively, "Applicable Law"). Terrace may make changes to the Services, or to this Agreement, if necessary to comply with changes to Applicable Law. If this occurs, Terrace will notify Customer within seven (7) days.
b. Posting Collateral. Terrace may require Customer to post or pledge cryptocurrency or fiat amounts in a DeFi, exchange or other applicable account ("Collateral") as specified by Terrace. Customer grants Terrace a limited authorization to encumber such Collateral with a third party in a DeFi network solely as necessary to effectuate the Services provided herein.
c. Security Interest and Collateral. Customer hereby grant Terrace a continuing security interest (the "Security Interest") which will remain in full force and effect until the later of: (1) any Fees due to Terrace have been set-off and reduced to zero and all other amounts due to Terrace under this Agreement have been remitted or paid, and (2) any conditions precedent or amounts due to a Secured Party as part of the Customer’s transactions with such Secured Party are satisfied. This Security Interest is granted in all Collateral. The Security Interest that Customer grants Customer is being given solely for the purpose of ensuring that Customer does not act to deprive Terrace of our bargained-for ability to collect Fees.
9. REGULATORY/NON-CUSTODIAN DISCLAIMERS
a. No Investment Advice, Brokerage or Custody.Terrace does not provide investment, financial, valuation, tax, or legal advice. Terrace does not broker transactions on Customer’s behalf or serve in a broker or dealer capacity in any way. Customer understands and agrees that: (a) in providing the Platform, Terrace acts solely as technology provider providing a software-as-a-service platform; (b) the Platform neither create nor are intended to create “custody” as defined in the Investment Advisers Act of 1940 (as amended and including all rules and regulations thereunder) (the "Advisers Act"), of any assets of Customer or any third party; (c) Terrace does not serve as custodian of or provide custodial services; (d) Terrace is not responsible for investment or any transaction decisions by Customer, which are the sole responsibility of Customer; and (e) Customer maintains full custody, control and beneficial ownership of its digital assets.
b. No Custody or Control. CUSTOMER ACKNOWLEDGES THAT DIGITAL ASSETS EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE APPLICABLE BLOCKCHAIN NETWORK, WHICH TERRACE DOES NOT CONTROL. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK, WHICH TERRACE DOES NOT CONTROL. TERRACE MAKES NO RECOMMENDATIONS AS TO WHETHER TO USE THE PLATFORM OR TO TRANSACT WITH OR USING ANY PARTICULAR DIGITAL ASSET OR ANY FIAT CURRENCY. TERRACE WILL NOT BE LIABLE IN ANY RESPECT FOR ANY LOSS ARISING FROM OR RELATING TO ANY DIGITAL ASSET OR BLOCKCHAIN NETWORK.
c. No Digital Asset Guarantees; Protocol Changes. CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) TERRACE MAKES NO WARRANTY OR GUARANTEE OF THE FUNCTIONALITY, SECURITY, OR AVAILABILITY OF ANY DIGITAL ASSET OR UNDERLYING PROTOCOLS; (B) SOME UNDERLYING PROTOCOLS ARE SUBJECT TO CHANGES TO THE ASSOCIATED BLOCKCHAIN OR DIGITAL LEDGER AND THAT ANY TRANSACTIONS MADE BY CUSTOMER MAY BE AFFECTED ACCORDINGLY; AND (C) THE UNDERLYING PROTOCOLS ARE SUBJECT TO SUDDEN CHANGES IN OPERATING RULES (A/K/A “FORKS”), AND THAT SUCH FORKS MAY MATERIALLY AFFECT THE VALUE, FUNCTION, AND/OR EVEN THE NAME OF THE DIGITAL ASSET.
10. GENERAL DISCLAIMERS
THE PLATFORM, PROFESSIONAL SERVICES, AND OTHER TERRACE IP ARE PROVIDED ON AN “AS IS” BASIS, AND TERRACE MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE TERRACE IP, THE PLATFORM, PROFESSIONAL SERVICES, OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TERRACE HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, TERRACE HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE PLATFORM OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
11. LIMITATIONS OF LIABILITY
a. Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE TERRACE IP OR THE PROVISION OF THE PLATFORM, AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
b. Total Liability. IN NO EVENT WILL TERRACE’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE TERRACE IP OR THE PROVISION OF THE PLATFORM, OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO TERRACE IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT TERRACE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
c. Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN TERRACE AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
12. TERM AND TERMINATION
a. Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the "Initial Term"). Following the Initial Term, this Agreement will automatically renew for additional periods of the same duration as the Initial Term (each, a "Renewal Term", and together with the Initial Term, the "Term"), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
b. Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
c. Survival. The following Sections will survive termination or expiration of this Agreement for any reason: Sections 2(f), 2(g), 3, 4, 7, 9, 10, 11, 12(c), 12(d), and 14.
d. Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 1(a) will terminate; and (ii) Customer will return or destroy, at Terrace’s sole option, all Terrace Confidential Information in its possession or control, including permanent removal of such Terrace Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Terrace’s request, certify in writing to Terrace that the Terrace Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
13. TRADEMARKS
Customer hereby grants Terrace a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the "Customer Marks") during the Term in connection with (i) the hosting, operation and maintenance of the Platform; and (ii) Terrace’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Terrace and in case studies. All goodwill and improved reputation generated by Terrace’s use of the Customer Marks inures to the exclusive benefit of Customer. Terrace will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.
14. GENERAL
Neither party may assign, transfer or sublicense this Agreement, by operation of law or otherwise, without the other party’s prior written consent, except to a successor entity in the event of a merger, consolidation or sale of all or substantially all of the assets of such party, and any attempt by either party to do so, without such consent, will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns. Customer will fully comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Platform or software, or any Customer Materials, outside the United States ("Export Rules"), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement, including its exhibits, schedules, attachments, and any Order Form(s), is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. In the event of a conflict or inconsistency between the body of this Agreement and any exhibit, schedule, attachment, or any Order Form to this Agreement, the body of this Agreement will control. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver. This Agreement will be governed by and construed in accordance with the laws of the State of Ohio without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Columbus, Ohio and the parties irrevocably consent to the personal jurisdiction and venue therein. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed. This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as originals.
15. DEFINITIONS
a. "Aggregate Data" means any data that is derived or aggregated in de-identified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Platform, including, without limitation, any usage data or trends with respect to the Platform.
b. "Authorized User" means an employee or contractor whom Customer has authorized to Use the Platform.
c. "Customer Materials" means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Platform or to Terrace in connection with Customer’s Use of the Platform, including the data provided by Customer as set forth in the Customer Data Obligations Section of the Order Form, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Terrace and made available through or in connection with the Platform.
d. "Documentation" means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Terrace to Customer (including any revised versions thereof) relating to the Platform, which may be updated from time to time upon notice to Customer.
e. "Gas Fees" mean the fees that fund the network of computers that run the decentralized blockchain network.
f. "Intellectual Property Rights" means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
g. "Order Form" means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Terrace in writing; or (iii) quote issued by Terrace and accepted by Customer, in each case which references this Agreement and sets forth the applicable Platform and/or Professional Services to be provided by Terrace.
h. "Professional Services" are those set forth in the relevant Order Form.
i. "Platform" means Terrace’s online technology platform which facilitates access to certain approved exchanges and Decentralized Finance (DeFi) protocols across various blockchain networks, as more particularly described or identified in the applicable Order Form.
j. "Terrace IP" means the Platform, the underlying software provided in conjunction with the Platform, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Platform or any Professional Services, Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
k. "Transaction" means each transaction initiated by or on behalf of Customer using or facilitated by the Platform.
l. "Use" means to access the Platform for internal business use in the manner which Terrace intends, in compliance with this Agreement and the Documentation