LAST UPDATED NOVEMBER 29, 2021
This Master Services Agreement (this “Agreement”) is a binding agreement between Chain.io, LLC, a Delaware limited liability company with offices at 1650 Market Street, Suite 3600, Philadelphia, PA 19103, U.S.A. (“Chain.io”) and the entity (“Customer”) receiving the Services (as defined in Section 1 below), and governs the provision and use of such Services.
By Accepting (as defined below) this Agreement Customer agrees to the terms of this Agreement. “Accepting” or “Accept ” means (i) signing an Order Form and/or this Agreement, or (ii) checking a box or clicking a button indicating acceptance of an Order Form and/or this Agreement. If the person Accepting this Agreement is entering into it on behalf of a company or other legal entity, such person represents and warrants that he or she has the authority to bind such entity to this Agreement, in which case the terms “Customer” shall refer to such entity. If you do not have such authority or do not Accept the terms of this Agreement, you may not use the Services.
1. Services. During the term of this Agreement, Customer may request that Chain.io provide consulting, development, support and/or other professional services (collectively, the “Services”), as specified in one or more order forms, statements of work or other similar documents (each, a “Order Form”) Accepted by both parties in writing. The Services do not include the Chain.io online services (the “Chain.io Platform”). The Terms of Service, available at https://chain.io/terms-of-service, apply to Customer’s use of the Chain.io Platform. Each Order Form shall set forth the business terms and requirements governing an engagement for Services, including, without limitation, as applicable, a detailed description of the Services to be performed, deliverables, pricing, payment schedule, specifications, acceptance criteria and/or project timeline. Once an Order Form is Accepted by both parties, it shall become a part of and subject to the terms and conditions of this Agreement. Chain.io shall have no obligation to perform Services except as provided in a mutually Accepted Order Form or otherwise under this Agreement.
2. Term. The term of this Agreement shall begin on the effective date of the first Order Form hereunder and shall continue until terminated in accordance with this Section 2. Either party may immediately terminate this Agreement upon written notice to the other party in the event that there are no mutually Accepted but unexpired and unterminated Order Forms under this Agreement. Either party may terminate this Agreement, or any Order Form hereunder (i) upon thirty (30) days’ prior written notice to the other if the other party materially breaches a material term of this Agreement or such Order Form (including failing to pay any amount when due) and such breach is not cured within the thirty (30) day notice period; or (ii) as otherwise set forth in an Order Form. Chain.io may also terminate an Order Form upon thirty (30) days’ notice to Customer if Customer repeatedly delays or fails to provide input, feedback or cooperation needed for the relevant project as required in Section 3 below. This Agreement shall terminate automatically in the event that all Order Forms hereunder have expired or been terminated. In the event of any termination, Chain.io shall be entitled to payment for Services performed and reimbursable non-cancelable expenses incurred in accordance with this Agreement and the terminated Order Form(s) through the effective date of termination. If an Order Form that is terminated specifies a fixed-price project or milestone-based payments, then the applicable milestones will be deemed completed and partial payment will be made for the project or the individual milestones based on percentage of completion. Upon termination of an Order Form, Chain.io shall deliver to Customer all completed deliverables as well as works-in-progress and Customer shall promptly pay for any unpaid Services under such Order Form through the effective date of termination. Sections 2, 5, 8-11, and 13 of this Agreement, as well as any other provisions that, by their nature, are intended to survive termination of this Agreement, shall do so.
3. Cooperation. The parties agree to cooperate with each other as reasonably necessary for Chain.io to provide the Services in a timely, uninterrupted fashion. Chain.io shall not be responsible for any delays in project timelines attributable to Customer’s failure to provide timely assistance, feedback, content, hosting account access information or other interaction or information needed for a project. In the event of a Customer delay in the Services, payments shall continue to be made in accordance with the payment schedule in the applicable Order Form. Where payments in an Order Form are to be made upon the completion of milestones, a Customer delay of more than thirty (30) days will result in any milestone affected by the delay being deemed completed.
4. Acceptance. The deliverables furnished under each Order Form shall be subject to Customer’s approval according to the procedures below and the acceptance criteria set forth in the applicable Order Form. Approval of deliverables shall not be unreasonably withheld and may only be withheld for material verifiable non-conformity to the specifications and acceptance criteria set forth in the applicable Order Form. Deliverables may be furnished in stages, and the parties shall cooperate to facilitate the prompt testing and evaluation of all deliverables. Once approval of an intermediate or final deliverable has been given, any further requested changes to such deliverable shall require a change order under Section 6 below. If Customer demonstrates a verifiable material non-conformity in any deliverable, Chain.io shall correct the non-conformity at its expense and re-submit the deliverable for approval. Following Chain.io’s completion of the final deliverable under an Order Form, Customer shall have fifteen (15) days to test it for conformity. If Customer fails to report a material non-conformity in the final deliverable within the relevant fifteen (15) day approval period, the deliverables shall be deemed accepted and approved. If an Order Form does not specify acceptance criteria, then the Services and deliverables provided hereunder shall be deemed accepted upon performance.
5. Payment. Unless otherwise stated in the Order Form, all payments are due within 30 days after receipt of Chain.io’s invoice. Customer shall also pay any sales, value-added, or use taxes, or similar governmental taxes or charges, that may be payable with respect to the Services or the transactions contemplated by this Agreement, excluding taxes on Chain.io’s net income, that are separately stated in the Order Form or Chain.io’s invoices. Customer shall reimburse Chain.io for all expenses approved by Customer in advance as specified in an Order Form that are incurred by Chain.io in performing the Services and included in Chain.io’s invoices. Customer shall pay all invoiced amounts within thirty (30) days after receipt of the applicable Chain.io invoice. All invoiced amounts which are not reasonably and specifically objected to in a communication containing detailed evidence supporting the objection within the thirty (30) day payment period shall be deemed undisputed and owing. Any undisputed unpaid amounts shall bear interest at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lesser. In the event of Customer’s failure to pay any amount due under this Agreement, Customer shall also reimburse Chain.io for its reasonable costs of collection, including reasonable legal and collection agency costs.
6. Change Orders. Except for amounts expressly stated in an Order Form as “fixed-price,” “fixed-bid” or “not-to-exceed,” all amounts quoted in an Order Form for Services are reasonable good-faith estimates by Chain.io based solely on the information provided by Customer thus far, the specifications set forth in the Order Form and the other requirements therein, and amounts invoiced will be based on Services actually performed. Changes in specifications, content, functionality, technology or other requirements requested by Customer, or discovery of material information not previously disclosed to Chain.io, may impact scope of work and project cost and thus may require execution of a change order or separate Order Form.
7. Warranties. Chain.io represents and warrants that: (a) the Services provided by Chain.io shall be performed in a competent and workmanlike manner, by knowledgeable and skilled personnel; and (b) the deliverables will be designed so as to operate in all material respects in conformity with the specifications in the applicable Order Form for a period of ninety (90) days after delivery (the “Warranty Period”). Notwithstanding the above, or anything to the contrary in this Agreement, Chain.io shall not be responsible for defects or "bugs" in software components (a) where such components are not provided by Chain.io, or (b) which defects or bugs result from (i) modifications to computer code not performed by Chain.io, (ii) additional requirements not known at the time at the time of development, (iii) integration into non-Chain.io-delivered components, or (iv) new data or functionality entered dynamically or through formal release process by Customer or third parties, or changes in or upgrades to operating systems, that were not available for testing and not documented in the requirements during the course of Chain.io’s development and testing cycles. In the event that Customer reports a material defect or bug during the Warranty Period that Chain.io is able to replicate, and upon prompt investigation Chain.io determines that the root cause is an error in programming, or a failure of a previous repair, as Chain.io’s sole liability and Customer’s exclusive remedy for any warranty breach, Chain.io shall act diligently to remediate the defect or bug or provide a workaround that substantially restores the affected functionality. If Chain.io determines that the defect or bug is not one for which it is responsible, Chain.io shall provide Customer with an explanation of the cause of the problem and an estimate of the remediation cost. Chain.io shall perform the remediation work in accordance with an Order Form signed by both parties.
8. Confidentiality.
a. “Confidential Information” means any information of a confidential, proprietary, or competitively sensitive nature, whether marked or unmarked, relating to the disclosing party or its affiliates that is disclosed to or obtained by the receiving party, whether before or after the effective date of this Agreement, in connection with this Agreement or that a reasonable business person would consider confidential. Except as necessary to perform its obligations or exercise its rights under this Agreement, the Receiving Party shall not (i) use the Disclosing Party’s Confidential Information, or (ii) disclose the Disclosing Party’s Confidential Information to any third party. Each party shall exercise the same degree of care with the other party’s Confidential Information as it exercises with its own confidential and proprietary information, and in no event less than a reasonable degree of care. The receiving party shall disclose Confidential Information only to those employees, service providers and agents who have a “need to know” in connection with this Agreement.
b. “Confidential Information” shall not include any information that (a) is or becomes part of the public domain, other than as a result of the actions of the receiving party or its employees or contractors, (b) was already rightfully known to the receiving party as of the time it is disclosed to or obtained by the receiving party, (c) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party, or (d) is independently developed by the receiving party without reference to the other party’s Confidential Information.
c. Each party may disclose Confidential Information of the other party to comply with any applicable law or regulation, or in response to a lawfully issued subpoena or other court order, provided that the party being required to disclose Confidential Information shall (unless prohibited by applicable law), promptly upon receipt of such a request or court order, give written notice to the other party and provide reasonable assistance to the other party (at the other party’s expense) in seeking an injunction, protective order, or other relief to prevent disclosure.
9. Intellectual Property Rights.
a. Unless otherwise expressly stated in an Order Form, Chain.io shall retain all right, title, and interest in and to the deliverables and other work product (collectively, the “Work Product”) created under each Order Form, and all modifications, enhancements and derivative works of all of the Work Product. Additionally, Chain.io shall retain all right, title, and interest in and to the Services and all Confidential Information of Chain.io, and all modifications, enhancements and derivative works of all of the foregoing. During the term of the Agreement, Chain.io hereby grants to Customer and its Affiliates a limited, revocable, worldwide, royalty-free, non-exclusive, non-transferable (except as part of a permitted assignment of this Agreement), non-sublicensable (except to Customer's and Customer’s Affiliates’ respective customers and service providers) right to use the Work Product for the sole purpose of utilizing the Services in accordance with this Agreement.
b. During the term of the Agreement, Customer hereby grants to Chain.io and its Affiliates a limited, irrevocable (except as part of the expiration or termination of this Agreement), worldwide, royalty-free, non-exclusive, non-transferable (except as part of a permitted assignment of this Agreement), non-sublicensable (except to Chain.io's and Chain.io’s Affiliates’ respective services providers) right compile, collect, copy, modify, publish, display, create derivative works, host, store and otherwise use data, information, and other materials provided by or on behalf of Customer (“Customer Materials”) for the purposes contemplated by this Agreement.
c. Chain.io may refer to Customer as a customer in its website, promotional material, and customer lists.
10. Indemnification.
a. Chain.io shall indemnify, defend, and hold harmless Customer and its Affiliates and its and their respective officers, directors, shareholders, members, managers, employees and agents from all out-of-pocket costs, damages, losses, judgements, fines, and expenses (including reasonable attorneys’ fees) (individually and collectively, “Costs”) arising from any third-party demand, claim or proceeding (each, a “Claim”) arising from any actual or alleged infringement or misappropriation by the Services or Work Product of any third party’s U.S. patent, trademark, copyright, or trade secret. Chain.io shall have no liability under this Agreement for any Claim that arises from (a) the use of the Services or Work Product (i) in combination with any services, software, or products not furnished by Chain.io, (ii) in a modified state unless such modification is made or authorized by Chain.io, or (iii) in a manner other than that for which it was designed or in breach of this Agreement or an Order Form; or (b) Chain.io’s reliance on instructions, specifications or Customer Materials.
b. If Chain.io’s Services become, or in Chain.io’s opinion are likely to become, the subject of a claim of infringement or misappropriation, Chain.io shall, at its option and expense either: (i) procure for Customer the right to continue to use the Services, or (ii) replace or modify the infringing Services to make their use non-infringing without loss of substantial functionality. Notwithstanding the foregoing, if Chain.io, in its sole discretion, determines that neither of such options is available to it on commercially reasonable terms, Chain.io, at its option, may terminate Customer’s license for the allegedly-infringing Services or this Agreement, in which event Chain.io shall refund to Customer the unused portion of any fees prepaid under this Agreement. The infringement indemnification remedies provided in this Section 10 shall be Chain.io’s sole liability, and Customer’s sole and exclusive remedy, for any claims or allegations relating to intellectual property infringement or misappropriation.
c. Customer shall indemnify, defend, and hold harmless Chain.io and its Affiliates and its and their respective officers, directors, shareholders, members, managers, employees and agents from all out-of-pocket Costs arising from any third-party Claim arising from any (i) actual or alleged infringement or misappropriation by Customer Materials of any third party’s patent, trademark, copyright, or trade secret, or the privacy rights or any other proprietary right of any third party, or (ii) Customer’s use of the Services in breach of this Agreement.
d. The indemnified party shall promptly provide the indemnifying party with written notice of any Claim for which it seeks indemnification hereunder, and the indemnifying party shall assume the defense thereof; provided, however, that failure of the indemnified party to provide such notice will not release the indemnifying party from any of its indemnity obligations except to the extent that the indemnifying party’s ability to defend such Claim is materially prejudiced by such delay. The indemnifying party shall not (i) settle or compromise any such Claim (a) without the full release of the indemnified party from all liabilities and obligations associated with such Claim (except for any obligations that the indemnified party has consented to in writing), or (b) in a manner that imposes any obligation on the indemnified party (including the payment of any amount) without the prior written consent of the indemnified party, or (ii) admit liability or wrongdoing on behalf of an indemnified party without the indemnified party’s prior written consent. Each party shall have the right to participate, at its expense, in the defense of any Claim covered hereunder with counsel of its own choosing.
11. DISCLAIMERS AND LIMITATIONS OF LIABILITY. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN SECTION 7 ABOVE, THE SERVICES AND WORK PRODUCT ARE PROVIDED “AS IS,” AND CHAIN.IO HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, FREEDOM FROM ERRORS, DEFECTS, VIRUSES OR HACKING, SECURITY, OR UNINTERRUPTED USE. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR FOR INTENTIONAL BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, OR FOR A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (I) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF ANTICIPATED PROFITS OR ECONOMIC LOSS, OR (II) ANY DAMAGES FOR ANY CLAIM OR SERIES OF CLAIMS ARISING UNDER THIS AGREEMENT EXCEEDING, IN THE AGGREGATE, THE AMOUNTS PAID TO CHAIN.IO UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE EARLIEST EVENT GIVING RISE TO SUCH CLAIM.
12. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation hereunder (other than payment) if the delay or failure is due to strikes, blockade, war, revolutions, acts of terror, riots, natural disasters, pandemics, failures of telecommunication services or the Internet, criminal or malicious actions of third parties, or other events which are beyond the reasonable control of the non-performing party (a “Force Majeure Event”). Such delay or failure shall be excused solely to the extent that such event prevents or delays the affected party from fulfilling its obligations. Upon the cessation of such Force Majeure Event, the affected party shall promptly resume its performance of any suspended obligations.
13. Miscellaneous.
a. This Agreement, together with any Order Form executed hereunder and the Terms of Service, constitute the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior or contemporaneous representations, proposals, and agreements between Chain.io and Customer with respect to such subject matter. In the event of any conflict or inconsistency between the body of this Master Services Agreement, an Order Form, or the Terms of Service the following order of precedence shall apply, from highest to lowest, with respect to the subject matter in conflict: the Order Form, the Terms of Service, the body of this Master Services Agreement. This Agreement and any Order Form hereunder may be executed in counterparts, and a fax, PDF or similar electronic image of a signature shall count as an original.
b. The parties are independent contractors, not partners or joint venturers, and Chain.io agrees that it and its personnel are not entitled to any employment or fringe benefits offered by Customer to its employees, and that Chain.io is solely responsible for all tax withholding and similar obligations with respect to its employees.
c. Any notices that are required or permitted to be given hereunder shall be given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, or (c) by an internationally recognized commercial overnight courier that provides proof of delivery. Such notice shall be addressed to the party receiving such notice at its address stated above or to such other address as either party may from time to time specify in writing to the other party. Any notice shall be effective upon delivery.
d. This Agreement may not assigned, in whole or in part, by either party without the prior written consent of the other party; provided, however, that either party may assign this Agreement, upon written notice to the other party, (i) to any successor to substantially all its business or assets by merger, reorganization, combination, consolidation, purchase of assets or otherwise, or to any party acquiring substantially all of the assets or business of the business unit of such party to which this Agreement relates, or (ii) to an Affiliate. “Affiliate” means any entity directly or indirectly controlling, controlled by or under common control with a party, where “control” of an entity means ownership or the ability to direct the voting of at least fifty percent (50%) of the equity voting interests in such entity. Notwithstanding the foregoing, Chain.io may retain may use service providers and contractors in its performance of the Services.
e. No rights or obligations under this Agreement or any Order Form may be canceled, amended or waived, in whole or in part, except by an instrument in writing signed by an authorized signatory of each party. This Agreement and any Order Form hereunder shall be governed by the laws of the United States and the Commonwealth of Pennsylvania, excluding any applicable conflicts of laws rules thereof. Exclusive jurisdiction and venue for any action or dispute arising out of or relating to this Agreement or any Order Form hereunder shall be in the state and federal courts for Philadelphia, Pennsylvania, and the parties hereby consent to the jurisdiction and venue of such courts. In the event that either party brings an action to enforce or exercise its rights under this Agreement or an Order Form, the party prevailing in such action shall be entitled to reimbursement for its reasonable attorneys’ fees and court costs incurred in connection with such action.