Effective as of 16 January 2024.
This Blockchain Services Agreement (“Agreement”) is a binding legal agreement between you (“Customer”) and Lava Foundation. (“Lava”), and sets forth the terms and conditions pursuant to which Lava will provide Customer with the Blockchain Services (as defined below). By clicking “I accept” or otherwise accessing or using the Blockchain Services in any way, Customer represents that: (1) Customer has read, understands, and agrees to be bound by this Agreement; and (2) Customer has the authority to enter into this Agreement, as an individual and/or on behalf of the entity that Customer represents, as applicable. If an individual is entering into this Agreement on behalf of an entity, then “Customer” as used herein will refer to such entity. This Agreement will become effective upon the date of Customer’s acceptance hereof (the “Effective Date”). If Customer does not agree to be bound by this Agreement, Customer may not access or use the Blockchain Services.
At Lava, we respect and are committed to protecting the privacy of our users. This Privacy Policy outlines how we collect, use, disclose, and safeguard your personal information when you interact with our marketplace that connects developers consuming Remote Procedure Calls (RPCs) to service providers selling RPCs across multiple blockchains. Please read this policy carefully to understand our practices regarding your information and how we handle it. If you do not agree with our policy, please discontinue using our services.
1.1.
“API” means the application programming interface for sending data to or receiving data from the Blockchain Services and any libraries made available to Customer for accessing the foregoing.
1.2.
“Blockchain Services” means the provision of Lava’s blockchain infrastructure services, including the Lava Protocol, to Customer.
1.3.
“Customer Data” means any electronic data or information provided to Lava in connection with the Blockchain Services. For the avoidance of doubt, Customer Data does not include any Usage and Performance Data.
1.4.
“Dashboard” means the web based user interface made available by Lava in order for Customer to access portions of the Blockchain Services and that displays certain Usage and Performance data.
1.5.
“Documentation” means any user instructions, technical materials, or other materials that are provided by Lava in connection with the SDK, API, or Blockchain Services.
1.6.
“Employee Users” means Customer’s employee or contractor personnel authorized by Customer to access and use the Blockchain Services in connection with Customer’s internal business purposes.
1.7.
“Fees” means the fees specified for the Blockchain Services
1.8.
“Lava Offering” means, collectively, the Blockchain Services, API, SDK, Dashboard, Documentation, and any other services to be provided pursuant to this Agreement.
1.9.
“Open Source License” means the applicable license accompanying, linked to, embedded in or governing the use of Open Source Software.
1.10.
“Open Source Software” means any open source software that Lava makes available to Customer via the Blockchain Services.
1.11.
“SDK” means the software development kit that is capable of being embedded into and integrated with Customer’s software.
1.12.
“Usage and Performance Data” means any data derived from Customer Data and/or the use of the Lava Offering by Customer. For the avoidance of doubt, Usage and Performance Data does not does not associate Customer with any Customer Data from which it is derived.
1.13.
“IpRPC” - Incentivised Public RPC means a program on Lava’s blockchain infrastructure services, which carrey incentives and fee to eligible providers
2.1.
Service. Subject to Customer’s ongoing compliance with the terms of this Agreement, Lava hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right, solely during the Term, to access and use, and to allow Employee Users to access and use, the Lava Offering, solely for Customer’s internal business purposes and subject to any limitations set forth in the Documentation.
2.2.
API and SDK License. Subject to Customer’s ongoing compliance with the terms of this Agreement, Lava hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right, solely during the Term, to: (i) integrate and embed the SDK into Customer’s software, and (ii) use the API to submit data to and obtain data from the Lava Offering, solely for Customer’s internal business purposes and subject to any limitations set forth in the Documentation.
2.3.
Open Source Software. Any Open Source Software that Lava makes available to Customer shall be governed by the terms of the applicable Open Source License, and Lava grants Customer a license to use the Open Source Software solely to the extent permitted by the applicable Open Source License.
2.4.
License to Customer Data. Customer grants Lava a worldwide, nonexclusive, royalty-free license to store, copy, transmit, display, and use Customer Data (i) as necessary in order for Lava to provide the Blockchain Services and the Lava Offering in accordance with this Agreement and (ii) both during and after the Term, on a de-identified basis (i.e., such that such Customer Data cannot be associated with Customer), solely in order to further develop Lava Offering and Lava’s products and services. Subject to this limited license, Lava acquires no right, title, or interest from Customer under this Agreement in or to Customer Data.
2.5.
Restrictions. Customer shall not, directly or indirectly, and shall not authorize any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, algorithms, or associated know-how of the Lava Offering or results therefrom (except to the extent expressly made available to Customer by Lava or permitted by applicable law notwithstanding this restriction); (ii) write or develop any program based upon the Lava Offering or any element thereof, or otherwise use the Lava Offering in connection with the development, distribution or availability of products or services competitive with the Lava Offering or any Lava products and services; (iii) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Lava Offering or any rights to any of the foregoing; (iv) permit the Lava Offering to be accessed or used by any persons other than Employee Users accessing or using the Lava Offering in accordance with this Agreement; (v) alter or remove any trademarks or proprietary notices contained in or on the Lava Offering; (vi) circumvent or otherwise interfere with any authentication or security measures of the Lava Offering or otherwise interfere with or disrupt the integrity or performance of the foregoing; or (vii) otherwise use the Lava Offering for any purpose other than as expressly permitted hereunder. Customer acknowledges that Lava may, but is under no obligation to, monitor Customer’s use of the Blockchain Services. Lava may suspend Customer’s, or an Employee User’s, access to the Blockchain Services for any period during which Customer or an Employee User is, or Lava has a reasonable, good faith basis for alleging Customer or an Employee User is, in noncompliance with the foregoing.
3.1.
In consideration for the access rights granted to Customer, Customer’s subscription, and/or the Blockchain Services performed by Lava under this Agreement, Customer shall pay to Lava the Fees . Lava may suspend access to the Lava Offering, Customer’s subscription, and/or the Blockchain Services immediately upon notice to Customer if Customer fails to pay any amounts hereunder by the date that is thirty (30) days following the applicable due date. Lava shall be entitled to withhold performance and discontinue service until all unpaid amounts due are paid in full. Any amounts not paid when due may bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less.
3.2.
Amounts due to Lava are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Lava’s revenue or income), fees, duties, and charges and any related penalties and interest, arising from the payment of amounts due hereunder, the delivery of Blockchain Services, or the use of the Lava Offering by Customer. Customer will provide Lava with official receipts issued by the appropriate taxing authority, or such other evidence as Lava may reasonably request, to establish that such taxes have been paid. Customer shall indemnify and hold harmless Lava from and against any proceedings brought by any taxing authorities arising from Customer’s failure to pay the taxes for which Customer is responsible hereunder.
3.3.
During ipRPC Lava reserves the right, at its sole discretion and after consultation with the partnering ecosystem, to hold, distribute, modify, or take any other actions related to payments to customers. This includes, but is not limited to, revising payment schedules, adjusting payment amounts, and implementing changes based on considerations deemed necessary by Lava. Customers acknowledge and agree that Lava may exercise these rights, and Lava shall not be liable for any claims, losses, or damages arising from such actions. Lava will make reasonable efforts to communicate any significant changes to the payment terms in a timely manner.
4.1.
Customer acknowledges that, as between Customer and Lava, Lava owns and retains all right, title, and interest, including all intellectual property rights, in and to the Lava Offering and Usage and Performance Data (excluding any Customer Data), including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship, and other tangible and intangible material and information pertaining thereto or included therein. Except for Lava’s compliance with its confidentiality obligations in this Agreement, nothing in this Agreement shall preclude or restrict Lava from using or exploiting any concepts, ideas, techniques or know-how of or related to the Lava Offering. Other than as expressly set forth in this Agreement, no licenses or other rights in or to the Lava Offering are granted to Customer and all such rights are hereby expressly reserved. Customer agrees that Lava may also use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, any suggestions, requests and feedback provided by or on behalf of Customer regarding the Lava Offering. As part of the Blockchain Services, Lava collects and tracks Usage and Performance Data to assist with the necessary operation and function of the Blockchain Services, to provide reporting to Customer and for internal purposes, including, without limitation, to facilitate in the provision of updates, support, and invoicing, as well as research and development. Such Usage and Performance Data will be owned by Lava and may be used for any lawful purpose. All Customer Data, and all worldwide intellectual property rights therein, are the exclusive property of Customer.
5.1.
Term. This Agreement will start on the Effective Date and will continue in full force and effect for one (1) year, unless terminated in accordance with the terms set forth herein (the “Initial Term”). Thereafter, the Agreement shall automatically renew for additional periods of one (1) year each (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of its intent not to renew the Agreement at least thirty (30) days prior to the expiration of the then-current Term.
5.2.
Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement, and such breach (i) is incapable of cure; or (ii) if capable of cure, remains uncured more than thirty (30) days after receipt of written notice of such breach.
5.3.
Effect of Termination. Upon the effective date of the expiration or termination of this Agreement for any reason: (i) Customer’s access to the Blockchain Services, Customer’s subscription, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer will become due and payable immediately; and (iii) except as may be required by applicable law, Customer shall immediately return, or at Lava’s request destroy and certify the destruction of, any tangible or intangible embodiments of Lava’s Confidential Information, including all copies of the SDK and API. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1, 2.5, 3, 4, 5.3, and 6 through 10 (excluding Section 10.4).
6.1.
Definition. “Confidential Information” means: (i) any non-public information disclosed, directly or indirectly, by or on behalf of one party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Agreement; and (ii) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. Without limiting the foregoing, the Lava Offering, the functionality and performance of the Lava Offering, the Dashboard, and the Usage and Performance Data are the Confidential Information of Lava, and the terms (but not the existence) of this Agreement will be kept confidential as each other party’s Confidential Information. However, Confidential Information does not include any information that: (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession without a duty of confidentiality owed to the Disclosing Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without breach of an obligation owed to the Disclosing Party.
6.2.
Use; Maintenance. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except: (i) to its advisors, or prospective investors or purchasers, in each case subject to written obligations of confidentiality, or (ii) where the Receiving Party becomes legally compelled to disclose Confidential Information, notwithstanding the Receiving Party’s having given the Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity to seek a protective order or other confidential treatment for such Confidential information (if permitted by applicable law). Each party will take reasonable measures and care to protect the secrecy of, and avoid disclosure and unauthorized use of, the other party’s Confidential Information, and will take at least those measures taken to protect its own Confidential Information.
7.1.
Intellectual Property Indemnification By Lava. Lava shall: (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s use, as authorized in this Agreement, of the Lava Offering constitutes an infringement of the patents, copyrights, trade secrets or other intellectual property rights of such third party (an “IP Claim”); and (ii) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) resulting from any such IP Claim. Customer shall provide Lava (a) prompt written notice of, (b) sole control over the defense and settlement of, and (c) all information and assistance reasonably requested by Lava in connection with the defense or settlement of, any such IP Claim. If any IP Claim is brought or threatened, Lava may, at its sole option and expense: (1) procure for Customer the right to continue to use the Lava Offering; (2) modify the Lava Offering, as applicable, to make it non-infringing; (3) replace the affected aspect of the Lava Offering with non-infringing technology having substantially similar capabilities; or (4) if none of the foregoing is commercially practicable, terminate this Agreement and refund all Fees pre-paid but unused as of the date of termination. Notwithstanding the foregoing, Lava will have no liability to Customer to the extent such IP Claim is attributable to: (A) Customer’s use of the Lava Offering in combination with software, products or services not provided or authorized by Lava; (B) Customer’s products or offerings or Customer Data; or (C) Customer’s failure to use the Blockchain Services in accordance with this Agreement. THIS SECTION 7.1 STATES THE ENTIRE LIABILITY OF LAVA, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY LAVA, THE LAVA OFFERING, OR ANY PART THEREOF.
7.2.
By Customer. Customer shall defend or, at its option, settle, any claim brought against Lava by a third party to the extent arising out of: (i) any unauthorized access or use of the Blockchain Services by Customer or any Employee Users or any third party utilizing any access credentials of Customer or any Employee Users; (ii) the use of the Blockchain Services in violation or in connection with a violation of applicable law; or (iii) the operation of Customer’s business or in connection with Customer’s products or offerings. Customer will indemnify Lava for all costs, liabilities, damages, and expenses incurred by Lava (including the amount of any settlement entered into or approved in writing by Customer) with respect to any such claim. Lava shall provide Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim.
8.1.
Mutual Warranties. Each party warrants that it has the authority to enter into this Agreement, and this Agreement constitutes each party’s legal, valid, and binding obligation.
8.2.
Lava Warranties. Lava further warrants that: (a) the Lava Offering will perform materially in accordance with applicable Documentation; and (b) Lava will not materially decrease the functionality of the Lava Offering during the Term.
8.3.
Customer Warranties. Customer further warrants that (a) Customer is sophisticated, experienced and knowledgeable with respect to blockchain technology; (b) Customer has conducted an independent investigation of the Blockchain Services and the matters contemplated by this Agreement; and (c) there is no legal proceeding pending or threatened relating to Customer’s blockchain technology related activities. In addition, as between Customer and Lava, Customer is responsible for Customer Data and the provision and use of Customer Data pursuant to this Agreement.
8.4.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, OR ACCURACY OF RESULTS. LAVA DOES NOT WARRANT THAT THE LAVA OFFERING WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPATIBLE WITH ANY PARTICULAR DEVICE. THERE ARE RISKS ASSOCIATED WITH BLOCKCHAIN TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, THE RISK OF HARDWARE, SOFTWARE AND INTERNET CONNECTIONS, AND THE RISK OF MALICIOUS SOFTWARE INTRODUCTION. THE LEGAL AND REGULATORY REGIME GOVERNING BLOCKCHAIN TECHNOLOGIES IS UNCERTAIN, AND NEW REGULATIONS OR POLICIES MAY MATERIALLY ADVERSELY AFFECT THE DEVELOPMENT OF THE LAVA OFFERING. LAVA IS NOT RESPONSIBLE FOR THE PERFORMANCE OF ANY THIRD-PARTY HARDWARE, SOFTWARE, PRODUCTS OR SERVICES, INCLUDING ANY SERVERS, BLOCKCHAINS OR NODES.
9.1.
LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE LESSER OF (I) THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE OR (II) $500. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
10.1.
Assignment. Neither party may assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, except that a party may assign this Agreement in its entirety without the consent of the other party to a successor in interest as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to this Agreement, or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
10.2.
Force Majeure. Except for the obligation to pay amounts due hereunder, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet. The delayed party shall give the other party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.
10.3.
Governing Law. This Agreement shall be governed by and construed under the laws of the Cayman Island without reference to conflict of laws principles.
10.4.
Publicity. Subject to the terms of this Section, Customer consents to Lava to identifying Customer as a Lava customer by its name, logo and/or other type of mark on the Lava website and other marketing materials. Any goodwill arising from the use of Customer’s name and marks by Lava will inure to Customer’s benefit.
10.5.
Government Rights. Lava provides the Lava Offering, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Blockchain Services, API, and SDK shall constitute “commercial” computer software. Government technical data and software rights related to the Blockchain Services, SDK and API include only those rights customarily provided to the public as defined in this Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Customer-Side Application) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Customer-Side Application or Computer Customer-Side Application Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Lava to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
10.6.
Arbitration. The parties agree to resolve all disputes arising under or in connection with this Agreement through binding arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the Cayman Island. The arbitration will be conducted in English in the Cayman Islands. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. Notwithstanding the foregoing, this Section 10.6 will not prohibit either party from: (i) bringing an individual action in small claims court; (ii) seeking injunctive or other equitable relief in a court of competent jurisdiction; (iii) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available; or (iv) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 10.6 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 10.3 will govern any action arising out of or related to this Agreement.
10.7.
Miscellaneous. This Agreement is the sole agreement of the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter. Customer may subcontract or delegate any rights or obligations granted to it under this Agreement to any third parties, including its consultants or contractors, without the prior written consent of Lava; provided that Customer shall remain responsible hereunder for any such subcontractor’s performance. Customer agrees that it is solely responsible for any liability arising out of Employee Users access and use of the Lava Offering in violation of this Agreement. No terms of any purchase order, acknowledgement, or other form provided by Customer or invoice or other form provided by Lava will modify this Agreement, regardless of any failure of a party to object to such terms. Any ambiguity in this Agreement shall be interpreted without regard to which party drafted this Agreement or any part thereof. There are no third-party beneficiaries to this Agreement. This Agreement may only be amended by a writing signed by both parties. This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Any required notice shall be given in writing by customary means with receipt confirmed at the address of each party set forth above, or to such other address as either party may substitute by written notice to the other, or by email. Notices will be deemed to have been given 1 day after delivery to an overnight courier service. The relationship between the parties shall be that of independent contractors. Lava may use subcontractors or otherwise delegate aspects of its performance under this Agreement. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement and the remainder of this Agreement will continue in full force and effect without said provision. The parties agree to comply with all applicable export control laws and regulations related to their performance of this Agreement.
