EnCirca AltRoots Terms and Conditions

Encirca, Inc. (“Encirca”) is a provider of AltRoots brand protection services. These Encirca AltRoots Terms and Conditions (the “Agreement”) apply to Encirca’s AltRoots Service, which is a trademark research tool for discovering exact and close matches for blockchain domain names.

  1. Definitions. (a) The following terms, when appearing with a capital letter, have the meaning set forth below:

    “Affiliate” of a Party means any legal entity that directly or indirectly controls, is controlled by or is under common control with the Party. For the purpose of this definition, “control” means the power to direct, or to cause the direction of, through the ownership of voting securities, by contract or otherwise of more than 50% of the relevant legal entity;

    Authorized Persons” means those Persons (whether personnel of Customer or its clients), who are authorized by Encirca to have access to and use the Encirca Platform. Authorized Persons are limited to employees of Customer. Authorized Persons does not include partners of Customer or client partners, unless agreed upon in writing between the Parties. For the avoidance of doubt, Customer is not permitted to expand the scope of this license to users which in any manner resell the Services.

    “Encirca Platform” means the proprietary platforms which Encirca makes accessible to Authorized Persons, including but not limited to any future Encirca platform, Enhancements or iterations of these platforms or new platforms provided by Encirca for use by its Customers; and any backup or copy of the Platforms which is to be maintained and operated by Encirca as necessary to perform and deliver the Services hereunder.

    “Customer” is the party that purchases the Services.

    “Customer Data” any and all data provided by Customer to Encirca under the Agreement, including the information provided under the contract, legal or other documentation and materials and all information, reports, and analysis which has been loaded onto, created, edited, modified or otherwise produced by an Authorized Person or Customer as a result of using the Encirca Platform. This does not include public information or output otherwise produced by Encirca or the Encirca Platform that is not designated within the scope of Services delivered to the Customer.

    “Enhancement” means any update, upgrade, new version, modification or enhancement to the Encirca Platform.

    “Force Majeure” means any cause beyond Encirca’s control, as a result of which Encirca is unable to perform its obligations under the Agreement. Such causes include but are not limited to acts of God, labour conflicts, acts of war or civil disruption, governmental regulations, public utility failures, network failures, industry-wide shortages of labour or material, natural disasters or health crises.

    “Intellectual Property Rights” means any copyright, database right, design right, rights to inventions (whether or not patentable), patents, patent applications, know-how, trademarks, service marks, trade secrets and any rights similar or analogous to any of the foregoing, in each case: (a) whether arising by operation of law, registrable or registered; (b) whether now known or in the future created; (c) in each and every part of the world; (d) for the full term of such rights together with any extensions; (e) including (without limitation) all future rights where capable of present assignment; and (f) with the right to claim for past infringement.

    “Party”/”Parties” means in singular either Encirca, by and through its related entities, or the Customer and in plural both Encirca and Customer.

    “Person” means an individual, a partnership, a limited liability company, a joint venture, a corporation, a trust, an unincorporated organization, a division or operating group of any of the foregoing, a government or any department or agency thereof, or any other legal entity.

    “Power of Authority” documented authorization by Customer to Encirca giving Encirca the authority to act on its behalf in relation to any Services listed herein or provided in an Order Statement.

    “Purpose” means the relationship between the Parties and the objectives of the Customer in relation to the Services provided through this Agreement or any Order Statement.

    “Data Report” means the data created by and through the Encirca Platform or reports in relation to the provision of Services under the Agreement and any Order Statement. The terms of the Data Report are incorporated by reference into the Agreement.

    “Services” means all services to be performed and delivered by Encirca under the Agreement or in any Order Statement.

    “Source Materials” means the source code, executable code, software build process documentation and database scheme, coding guide and standards, other technical documents relating to the software, enhancements and such other text files in such form that they can be compiled or interpreted into object code together with all technical information and documentation which will allow the use, reproduction, modification and enhancement of the software comprising the Encirca Platform, including information generated from the Encirca Platform through public source and clustering technology which enables the software to function and produce output.

    “Order Statement” means Encirca’s statements, information, and terms provided in the order specifying the Services to be provided to Customer. The terms of the Order Statement will be provided at the time that Customer purchases the Services through the Encirca Platform or by other means specified by Encirca. The terms of the Order Statement are incorporated by reference into the Agreement.

    “Subscription” means set term offering of the Service, specified in any Order Statement.

  2. License to the Encirca Platform

    (a) Encirca grants to the Customer for the term of the Agreement a non-exclusive, non- transferable, non-sublicensable and worldwide license to access and use the Encirca Platform, for the Customer’s own business purposes.

    (b) During the Term, the Customer may, without additional license, permit the Authorized Persons to have access to, and use the Encirca Platform for the Customer’s own business purposes in the manner contemplated by the Agreement, and any Order Statement.

  3. Access to the Encirca Platform:

    (a) Customer shall not permit any third party (not an Authorized Person) to use the Services or Encirca Platform without the prior written consent of Encirca.

  4. Intellectual Property Rights and Ownership of Customer Data or Reports

    (a) All Intellectual Property Rights in the Encirca Platfom(s) (except in the Customer Data provided by the Customer), the Source Materials and the Enhancements shall remain vested in Encirca and no Intellectual Property Rights are assigned or otherwise transferred to the Customer.

    (b) All Intellectual Property Rights in and to all Services, additions, developments, enhancements and improvements (except the Customer Data) created, produced or carried out by the Customer shall be vested solely in Encirca or the third parties from whom Encirca has obtained the right to use the Encirca Platform.

    (c) Encirca warrants that it has the full legal right to license the data on the Encirca Platform and that the use of Encirca Platform by the Customer or Encirca under the Agreement does not infringe on the Intellectual Property Rights of any third party.

    (d) Customer shall retain title to any Customer Data delivered by Customer to Encirca as part of the Services and Customer tailored Reports, but not including public domain or Encirca licensed information provided therein.

    (e) The Customer warrants that no provided Customer Data infringes on any Intellectual Property Rights of any third party.

  5. Services and Terms of Subscriptions: Encirca will provide the Customer with the Services, as described in the Order Statement.

    (a) Term of Purchased Subscriptions: Except as otherwise specified, Subscriptions will automatically renew for additional periods of length noticed to Customer at the time of purchase.

    (b) Support Services: The Services and Encirca Platform are provided as-is. Encirca shall not be required to provide Customer with the support services.

  6. Financial and Payment Terms: Fees, Invoicing, and Payment. Customer acknowledges and agrees that this Agreement will dictate all payment terms.

    (a) Customer will pay all fees specified in the respective Order Statement prior to the provisioning of the Services. Except as otherwise specified herein or in an Order Statement, (i) fees are based on Services and Subscriptions purchased and not actual usage, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription term.

    (b) Except as expressly provided in the applicable Order Statement, renewal pricing will be based upon the applicable Encirca list price (at the time of renewal). Any change to pricing will be communicated to the client in advance of price changes or renewal.

    (c) Encirca shall receive payment by credit card from Customer through the Encirca Platform in accordance with the relevant Order Statement.

    (d) Customer is responsible for providing complete and accurate billing and contact information to Encirca and notifying Encirca of any changes to such information.

    (e) All payments under the Agreement shall be made in currency reflected on as agreed to by the Parties through an Order Statement.

    (f) All fees set forth in the Agreement are exclusive of applicable taxes and duties, including any taxes or VAT and/or applicable sales or use tax. The Customer will provide Encirca with any information Encirca may reasonably request in order to determine whether Encirca is obligated to collect VAT, sales or use tax from the Customer, including the Customer’s VAT or taxpayer identification number, as well as tax exemption certificate or comparable documents, if applicable.

  7. Indemnity: Subject to the limitations of liability set out in Clause 8, each Party agrees to indemnify and defend the other Party from and against all claims, actions, proceedings, costs (including reasonable legal fees) expenses, losses, damages (other than consequential damages) and liabilities arising from the Party’s material breach of its obligations under this Agreement.

    (a) Encirca agrees to indemnify the Customer from and against all claims, actions, proceedings, costs (including reasonable legal fees), expenses, losses, damages (other than consequential damages) and liabilities arising from any claim by a third party that the use of the Services under the Agreement infringes such third party’s Intellectual Property Rights.

    (b) The Customer agrees to indemnify and defend Encirca from and against all claims, actions, proceedings, costs (including reasonable legal fees), expenses, losses, damages (other than consequential damages) and liabilities arising from any claim by a third party that: (1) Customer Data violates any civil or criminal law or regulation, or infringes such third party’s Intellectual Property Rights; (2) damages or claims resulting from Encirca reporting or taking actions instructed by the Customer, and/or under its authorization; (3) when Customer independently uses data from the Encirca Platform or Data Report and/or takes action independently.

  8. Liability: Except in relation to its liability arising from Clauses 7 (Indemnity) and in relation to any subpoenas, legal orders, demands or requests for information, Encirca’s aggregate liability under the Agreement shall under no circumstances exceed the payments to which Encirca would be entitled to receive from the Customer in the most recent calendar year.

    (a) Encirca will not accept any liability for infringing matter not found by Encirca’s search engine, the Encirca Platform, or personnel.

    (b) Customer acknowledges that Encirca acts under the authorization and instructions of the Customer in the creation, production and action taken on behalf of the Customer in relation to its Services provided under this Agreement.

    (c) Encirca is not responsible for third party claims resulting from or related to the instructed actions or Services provided.

    (d) Customer acknowledges and agrees that the performance of the Services is dependent on the timely completion of the Customer’s responsibilities and obligations under this Agreement. Customer will be responsible for: (i) the timely preparation, delivery, accuracy and completeness of all required information provided to Encirca or inputted into the Encirca Platform in connection with the Services, and (ii) the consequences and accuracy of any instructions Customer may give to Encirca.

    (e) Encirca’s liability for errors or faults in or in relation to the Encirca Platform or anything on the Encirca Platform does further not include faults or errors caused by circumstances beyond Encirca’s reasonable control.

    (f) Information retrieved by Customer from Encirca via the Encirca Platform (or in any other manner connection with Services) is not legal opinion and shall not be used or construed to be a legal advice for any purpose (including, as a final determination as whether a trademark is available for use or may be registered). Encirca is not a law firm and is not engaged in rendering legal services. It is the responsibility of the Customer to obtain necessary legal counsel on any information retrieved from the Encirca Platformor in connection with the provision of the Service(s).

    (g) No Warranty: Encirca makes no guaranties, representations or warranties as to the full availability, accuracy or completeness of contents or results of the Services and expressly disclaim the full availability, accuracy, comprehensiveness, currency, or suitability of purpose of any of the information retrieved from the system or Services. Encirca cannot and does not accept any liability for any unavailability of the information in third party databases or for errors or omissions in the information provided by third party information providers, nor does Encirca accept any liability with respect to the disclosure or use of information or records that may contain personally identifiable information.

  9. Term and Termination:

    (a) This Agreement commences on the date that Encirca provides the Services to Customer. It shall continue until all Subscriptions have expired or have been terminated.

    (b) The term of each Subscription will automatically renew for additional periods equal to the expiring Subscription term or one year (whichever is longer), unless either Party gives the other written notice (email acceptable) at least sixty (60) days before the end of the relevant, current Subscription term.

    (c) Either Party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such 30 day period, or (ii) if the other party becomes the subject of a petition of bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

    (d) If Encirca terminates this Agreement without cause prior to the end of any Term, Customer shall be limited to a refund on the following terms: (i) If the first Data Report of the then-current Term has already been provided, Customer shall receive a 5% refund from the fees paid for the then-current Term for each Data Report not provided during the then-current Term.

    (e) Termination does not relieve Customer of its obligation to pay fees payable to Encirca prior to the effective date of termination.

    (f) Upon termination of the Agreement howsoever arising, (i) the following Clauses shall survive the expiration or termination (howsoever arising) of the Agreement: Licenses, Intellectual Property Rights and ownership; Financial and payment terms, with respect to any payments owed to Encirca or any refunds or credits owed to the Customer, Indemnity, Consequences of termination, Subpoenas, Legal Orders, Demands or Requests for Information, Notices, Entire Agreement, Severability, Governing Law and Disputes.

  10. Force Majeure: Encirca shall not be liable for any delay or failure to carry out its obligations under the Agreement caused by Force Majeure, provided that it promptly gives written notice of the occurrence of the Force Majeure relied on to the Customer and it uses all reasonable endeavors to remove or avoid such Force Majeure as promptly as practicable.

  11. Subpoenas, legal orders, demands or requests for information: If Encirca receives a valid search warrant, subpoena, legal order, demand or other request for information regarding the Customer Data or Reports, from any government entity or court with proper jurisdiction over Encirca, Encirca shall, to the extent permitted by applicable law:

    (a) immediately notify the Customer of such request;

    (b) consult with the Customer regarding Encirca’s response;

    (c) cooperate with the Customer’s reasonable requests in connection with efforts by the Customer to intervene and quash or modify the request; and

    (d) upon the Customer’s request, provide the Customer with a copy of Encirca’s response

    (e) Encirca shall comply with any such request, unless such request has been quashed, withdrawn or modified. The Customer shall reimburse Encirca for Encirca’s actual costs of complying with any request, including Encirca’s legal fees, provided such request relates to the Customer’s actions or a lawsuit involving the Customer or any of its clients.

  12. Notice: Any notice under the Agreement will be in writing in the name or on behalf of the Party giving it. Notices may be sent byregistered mail, marked for the attention of authorized representative of the Customer and, in the case of Encirca, for the attention of the Chief Executive Officer of Encirca, Inc., or to such other address as such Party may specify to the other Party in writing from time to time.

  13. Entire Agreement: The Agreement and the Order Statement, with any Addendums or Schedules thereof, sets out the entire Agreement and understanding between the Parties and supersedes any previous Agreement between the Parties relating to its subject matter. Unless otherwise expressly agreed in writing, the Agreement applies in place of and prevails over any terms or conditions contained in or referred to in correspondence or elsewhere, or implied by trade, custom or course of dealing.

  14. Severability: Any term or provision of the Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

  15. Waivers: No failure or delay by a Party in exercising its rights or remedies shall operate as a waiver unless made by specific written notice. No waiver by a Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No single or partial exercise of any right or remedy of a Party shall operate as a waiver or preclude any other or further exercise of that or any other right or remedy.

  16. Independent contractors: The Parties are independent contractors and nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture or agency between the Parties; as such neither Party shall have any authority or power to bind, contract in the name of or create a liability for or against the other.

  17. Assignment: Neither Party may assign or transfer any of its rights or obligations under the Agreement or otherwise dispose of the Agreement without the prior written consent of the other Party, except as otherwise provided for in the Agreement, and to not be unreasonably withheld. Notwithstanding the above, Customer shall be entitled to assign or transfer the Agreement to one of its Affiliates, and Encirca shall be entitled to assign or transfer the Agreement in connection with a change of control, merger, or sale of all or substantially all of its assets related to the AltRoots Services.

  18. Export Compliance: The Services, other Encirca technology, and derivatives thereof may be subject to export laws and regulations of the United States and other relevant jurisdictions. Encirca and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any Authorized Person or user of the Services to access or use any Service or Content in a U.S.- embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.

  19. Governing Law and Disputes: The Agreement shall be governed by and interpreted in accordance with the laws of Massachusetts.

    (a) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by joint consultation. If joint consultation does not lead to a resolution, the dispute will be submitted to the responsible persons in the managerial boards of both parties.

    (b) Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination, or validity thereof, shall be resolved by final and binding arbitration. The arbitral tribunal shall have the sole power to rule on any challenge to its own jurisdiction and all issues regarding arbitrability shall be decided solely by the arbitral tribunal. The place of arbitration shall be Boston, Massachusetts. The language of the arbitration shall be English. The tribunal shall consist of one arbitrator. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties and the decisions made by the arbitral tribunal, including its awards to the extent not already in the public domain, except in judicial proceedings related to the award or where required by applicable law. The tribunal shall decide the procedures to be followed in the arbitration after consultation with the parties. The tribunal may make its decisions by a majority or by the chair if no majority is possible. The tribunal shall have the power to grant any provisional or final remedy or relief that it deems appropriate, including conservatory measures and an award of attorneys’ fees.