Terms and Conditions for Service Contracts
These Terms and Conditions for Service Contracts (these “Terms”) govern the provision of certain services (“Services”) by a service provider (“Service Provider”), to Securrency, Inc, a Delaware corporation, located at 1101 Wilson Blvd., 9th Floor, Arlington, VA 22209 (“Securrency” and together with Service Provider, the “Parties”, and each a “Party”), as requested and agreed to by Securrency.
1.1 Service Provider shall provide the Services (a) in accordance with the terms and subject to the conditions set forth herein and in any other requirements specified by Securrency (b) using personnel of required skill, experience, and qualifications; (c) in a timely, workmanlike, and professional manner; and (d) to the reasonable satisfaction of Securrency.
1.2 For the sake of clarity, nothing in these Terms shall be construed to prevent Securrency from itself performing or from acquiring services from other providers that are similar to or identical to the Services.
2. Service Provider Obligations. Service Provider shall:
2.1 Assign only qualified, legally authorized employees or approved contractors to provide the Services.
2.2 Comply with all applicable laws and regulations in providing the Services.
2.3 Comply with all Securrency rules, regulations, and policies of which it has been made aware in its provision of the Services.
2.4 Maintain complete and accurate records relating to the provision of the Services under these Terms. During the Term and for a period of one year thereafter, upon Securrency’s written request, Service Provider shall allow Securrency or Securrency’s representatives to inspect and make copies of such records; provided that Securrency provides Service Provider with advance written notice of the planned inspection and any such inspection shall take place during regular business hours.
3. Securrency Obligations. Securrency shall:
3.1 Respond promptly to any reasonable requests from Service Provider for instructions, information or approvals reasonably required by Service Provider to provide the Services.
4.1 Service Provider warrants that it:
(a) Shall perform the Services in accordance with the terms and subject to the conditions set forth herein and in any other requirements specified by Securrency.
(b) Shall perform the Services in a timely, workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
(c) Has the right to provide the Work Product to Securrency and that such Work Product shall not infringe the Intellectual Property Rights of any third party.
5. Intellectual Property.
5.1 Securrency is and will be the sole and exclusive owner of all right, title and interest throughout the world in and to all technology, inventions, techniques, processes, devices, discoveries, methods, ideas, concepts, research, improvements, documents, proposals, presentations or materials, and all other work product of any nature whatsoever, that are (a) created, prepared, produced, authored, edited, modified, conceived, reduced to practice by or on behalf of Service Provider in anticipation or in the course of performing the Services or (b) delivered to Securrency under these Terms (collectively, the “Work Product”), including all Intellectual Property Rights therein. For purposes of these Terms, “Intellectual Property Rights” shall mean all intellectual property rights, including copyrights, works of authorship, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights. Service Provider shall, upon request of Securrency, promptly execute a specific assignment of title to Securrency, and do anything else reasonably necessary to enable Securrency to secure for itself, patent, trade secret, or any other proprietary rights in the Work Product in the United States or other countries.
5.2 All writings or works of authorship, including, without limitation, program codes or documentation, produced or authored by Service Provider in the course of performing services for Securrency, together with any associated copyrights, are works made for hire and the exclusive property of Securrency. To the extent that any writings or works of authorship may not, by operation of law, be works made for hire, these Terms shall constitute an irrevocable assignment by Service Provider to Securrency of the ownership of and all rights of copyright in, such items, and Securrency shall have the right to obtain and hold in its own name, rights of copyright, copyright registrations, and similar protections which may be available in the works. Service Provider shall give Securrency or its designees all assistance reasonably required to perfect such rights.
5.3 As between Service Provider and Securrency and subject to the licenses granted in this Section 5.3, Service Provider is and shall remain the sole and exclusive owner of all right, title and interest in and to all documents, data, know-how, methodologies, software, and other materials developed or acquired by Service Provider prior to and independent of the performance of any Services hereunder (“Pre-Existing Materials”), including all Intellectual Property Rights therein. To the extent that any Pre-Existing Materials are incorporated or combined with any Work Product or otherwise necessary for the use or exploitation thereof, Service Provider hereby irrevocably grants to Securrency a royalty-free, fully paid-up, perpetual, transferable, sublicensable, worldwide, non-exclusive license to use, perform, display, reproduce, distribute, modify, make derivative works of, make, have made, sell, offer to sell, import, and otherwise exploit such Pre-Existing Materials as part of or in connection with the Work Product, and to practice any method related thereto. To the extent Service Provider makes any improvements or modifications to or derivative works of the Pre-Existing Materials in connection with performance of the Services (“Improvements”), Service Provider hereby irrevocably grants to Securrency a royalty-free, fully paid-up, perpetual, transferable, sublicensable, worldwide, exclusive license to use, perform, display, reproduce, distribute, modify, make derivative works of, make, have made, sell, offer to sell, import, and otherwise exploit such Improvements as part of or in connection with the Work Product, and to practice any method related thereto.
6. Confidentiality. From time to time during the Term, either Party (as “Discloser”) may disclose or make available to the other Party (as “Recipient”), non-public, proprietary and confidential information of Discloser (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Recipient’s breach of this Section 6; (b) is or becomes available to the Recipient on a non-confidential basis from a third party source, provided that such third party was not prohibited from disclosing such Confidential Information; (c) was in Recipient's possession prior to Discloser's disclosure hereunder; or (d) was or is independently developed by Recipient without access to or use of the Confidential Information. Recipient shall: (x) protect and safeguard the confidentiality of Discloser's Confidential Information with at least the same degree of care as Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Discloser's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms; and (z) not disclose any such Confidential Information to any person or entity. In the event any of the Confidential Information must be disclosed pursuant to judicial order or requirement of law, Recipient shall use commercially reasonable efforts to notify Discloser of such order or requirement.
7. Non-Competition. During the Term and for a period of one year thereafter, Service Provider shall not provide services to any persons known by Service Provider to be a direct competitor of Securrency, which includes any company purporting to enable the tokenization of securities, creation of compliance aware tokens, or the secondary exchange of crypto assets and tokenized securities.
8. Indemnification. Service Provider shall indemnify, defend, and hold harmless Securrency and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (“Representatives”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses and fees of whatever kind (including reasonable attorneys' fees) and the costs of enforcing any right to indemnification under these Terms, and the cost of pursuing any insurance providers (collectively, “Losses”), relating to any claim of a third party arising out of or occurring in connection with Service Provider’s alleged infringement of third party intellectual property rights, or alleging negligence, willful misconduct, or breach of these Terms by or on behalf of Service Provider.
9. Limitation of Liability.
9.1 EXCEPT FOR ANY PAYMENT OBLIGATIONS UNDER THESE TERMS, IN NO EVENT SHALL SECURRENCY OR ANY OF ITS REPRESENTATIVES BE LIABLE TO SERVICE PROVIDER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SECURRENCY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
9.2 EXCEPT FOR ANY PAYMENT OBLIGIATIONS UNDER THESE TERMS, IN NO EVENT SHALL SECURRENCY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED FIFTY THOUSAND U.S. DOLLARS ($50,000).
9.3 Service Provider acknowledges and agrees that the Parties entered into these Terms in reliance upon the limitations of liability set forth in this Section 9, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
10. Survival. The rights and obligations of the Parties set forth in these Terms which, by their nature, should survive termination of these Terms, shall survive any such termination of these Terms.
11. Injunctive Relief. If the Service Provider violates any provision of these Terms, Securrency shall, in addition to any damages to which it is entitled, be entitled to (a) suspend payment, and (b) seek immediate injunctive relief against the Service Provider prohibiting further actions inconsistent with the Service Provider's obligations under these Terms.
12. Insurance. Throughout the Term, Service Provider shall, at its own expense, maintain and carry insurance in full force and effect with a financially sound and reputable insurer that includes commercial general liability with an aggregate limit no less than $3,000,000 and $1,000,000 per occurrence. Upon Securrency’s request, Service Provider shall provide Securrency with a certificate of insurance evidencing such insurance coverage and naming Securrency as an additional insured.
13. Notices. All notices, requests, consents, claims, demands, waivers and other communications under these Terms (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth above (or to such other address that the receiving Party may designate from time to time in accordance with this Section 13). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 13.
14. Severability. If any term or provision of these Terms is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
15. Amendments. No amendment to or modification of these Terms is effective unless it is in writing and signed by both Parties.
16. Waiver. No waiver by any Party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17. Assignment. Service Provider shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under these Terms without the prior written consent of Securrency. Any purported assignment or delegation in violation of this Section 17 shall be null and void. No assignment or delegation shall relieve Service Provider of any of its obligations under these Terms.
18. Successors and Assigns. These Terms are binding on and inure to the benefit of the Parties to these Terms and their respective permitted successors and permitted assigns.
19. Independent Contractor.
19.1 It is understood and acknowledged that the Services which Service Provider will provide to Securrency hereunder shall be in the capacity of an independent contractor and not as an employee or agent of Securrency. Service Provider shall control the conditions, time, details, and means by which Service Provider performs the Services. Securrency shall have the right to inspect the work of Service Provider as it progresses solely for the purpose of determining whether the work is completed according to these Terms and any other requirements specified by Securrency.
19.2 Service Provider has no authority to commit, act for or on behalf of Securrency, or to bind Securrency to any obligation or liability.
19.3 Service Provider shall not be eligible for and shall not receive any employee benefits from Securrency and shall be solely responsible for the payment of all taxes, FICA, federal and state unemployment insurance contributions, state disability premiums, and all similar taxes and fees relating to the fees earned by Service Provider hereunder.
20. No Third-Party Beneficiaries. These Terms benefit solely the Parties to these Terms and their respective successors and assigns and nothing in these Terms, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
21. Choice of Law. These Terms and all related documents, including all exhibits attached hereto, and all matters arising out of or relating to these Terms, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, United States of America, without giving effect to the conflict of laws provisions thereof.
22. Entire Agreement. These Terms and any contractual requirements specified in writing by Securrency constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.