DigiShares
Platform Subscription Agreement
This
Platform Subscription Agreement is between the entity you represent, or you as
an individual if you do not represent an entity (the "Licensee"),
and DigiShares Inc., a company incorporated in the State of Delaware having its
registered office at 66 West Flagler Street Suite 900, Miami, FL 33130
(the "Licensor"). The Agreement lists the platform
subscription terms and conditions, including subscription charges and
non-payment consequences.
1.
Definitions
1.1.
In this Agreement:
"Agreement"
means this agreement including any Schedules, and any amendments to this
Agreement from time to time;
"Business
Day" means any weekday other than a bank or public holiday in Denmark;
"Business
Hours" means the hours of 09:00 to 16:00 CET on a Business Day;
"Charges"
means the following:
(a) terms
specified in Part 3 of Schedule 1 (Software License Particulars); and
(b) such
amounts as may be agreed by the parties in writing from time to time;
"Documentation"
means the documentation for the Software produced by the Licensor and delivered
or made available by the Licensor to the Licensee;
“DPA”
means DigiShares’ Data Processing Agreement;
"Effective
Date" means the date in which this Agreement has been accepted;
"Intellectual
Property Rights" means all intellectual property rights wherever in
the world, whether registrable or unregistrable, registered or unregistered,
including any application or right of application for such rights (and these
"intellectual property rights" include copyright and related rights,
database rights, internet domain names, confidential information, trade
secrets, know-how, business names, trade names, trade marks, service marks,
passing off rights, unfair competition rights, patents, petty patents, utility
models, semi-conductor topography rights and rights in designs);
"Minimum
Term" means, in respect of this Agreement, the period of 12 months
beginning on the Effective Date;
“Onboarding
Process” means the process of onboarding where Licensee must
complete the three following tasks before deployment can start: (1) KYB
verification, (2) payment of Onboarding Fee, (3) registration with Stripe for
payment of monthly subscriptions.
"Schedule"
means any schedule attached to the main body of this Agreement;
"Software"
means the software identified in Part 1 of Schedule 1 (Software License
Particulars);
"Software
Defect" means a defect, error or bug in the Software having a material
adverse effect on the appearance, operation, functionality or performance of
the Software, but excluding any defect, error or bug caused by or arising as a
result of:
(a) any
act or omission of the Licensee or any person authorised by the Licensee to use
the Software;
(b) any
use of the Software contrary to the Documentation by the Licensee or any person
authorised by the Licensee to use the Software;
(c) a
failure of the Licensee to perform or observe any of its obligations in this
Agreement; and/or
(d) an
incompatibility between the Software and any other system, network,
application, program, hardware or software not specified as compatible in the
Software Specification;
"Software
Specification" means the specification for the Software set out in
Part 1 of Schedule 1 (Software License Particulars) and in the Documentation;
and
"Term"
means the term of this Agreement, commencing in accordance with Clause 2.1.
“STO”
means Security Token Offering
2.
Term
2.1.
This Agreement shall come into force upon Effective Date.
3.
Consultancy and Maintenance
3.1.
Any consultancy conducted in relation to this
Agreement will be invoiced separately.
3.2.
In order to be able to conduct maintenance on
the software, Licensor will keep an administrator account on the software
solution, as well as the server where the software is installed.
4.
Supply of Software
4.1.
The Licensor shall make the Software
available on a domain (url) specified and owned by Licensee, customized to
Licensee’s brand and specifics, once the Onboarding Process has been
completed, on the condition that the Licensee supplies essential information
and material necessary for the Licensor to supply the Software to a sufficient
extent.
4.2.
The Licensor will host the Software for
Licensee, if nothing else is agreed.
4.3.
The Licensor undertakes to provide updates of
the Software when such updates are available, if in the opinion of the
Licensor, such updates are relevant for the Licensee and the Licensee agrees to
accept and use such updates.
5.
License
5.1.
The Licensor hereby grants to the Licensee
from the date of supply of the Software to the Licensee until the end of the
Term a worldwide, non-exclusive license to:
(a) use a single
instance of the Software in accordance with the Documentation; subject to the limitations and prohibitions set out and
referred to in this Clause 5.
5.2.
The Licensee may not sub-license and must not
purport to sub-license any rights granted under Clause 5.1 without the prior
written consent of the Licensor.
5.3.
The license granted by the Licensor to the
Licensee in Clause 5.1 is subject to the limitations set out in Part 3 of
Schedule 1 (Software License Particulars).
5.4.
The Software may only be used by the officers
and employees of the Licensee, by investors in Licensee’s STO, and by investors
signing up for any STO offered by Licensee.
5.5.
The Software is hosted in the cloud by
Licensor. The operation, use and outcome of the Software and server is
ultimately the responsibility of Licensee even if the hosting is outsourced to
Licensor.
5.6.
Save to the extent expressly permitted by
this Agreement or required by applicable law on a non-excludable basis, any
license granted under this Clause 5 shall be subject to the following
prohibitions:
(a) the Licensee must
not sell, resell, rent, lease, loan, supply, publish, distribute or
redistribute] the Software;
(b) the Licensee must
not decompile, de-obfuscate or reverse engineer, or attempt to decompile,
de-obfuscate or reverse engineer, the Software.
5.7.
In the event the Licensor refers a third
party to the Licensee and such third party becomes a client of the Licensee for
tokenisation under the Software License granted to the Licensee under this
Agreement ("Referred Client"), the Licensee agrees to pay the
Licensor promptly after conclusion of the contract with the Referred Client and
payment of the onboarding fee by the Referred Client a fixed sum that is 20% of
the paid onboarding fee (“Referral Fee”) + 20% of all fees invoiced and paid by
the Referred Client to Licensee over a period of 2 years (excluding
consultancy).
6.
No assignment of Intellectual Property Rights
6.1.
Nothing in this Agreement shall operate to
assign or transfer any Intellectual Property Rights from the Licensor to the
Licensee, or from the Licensee to the Licensor.
6.2.
The Licensee understands that the Licensor in
its independent editing activity, may freely use and reuse and resell any
technical part, tool and/or expertise developed in the process of building the
Software. This does not apply to features developed solely by the Licensee,
provided that (i) the Licensee has notified the Licensor in writing of such
limitation, and (ii) the Parties expressly agree to such features.
6.3.
The Licensee remains the sole owner of its
investors data and all data which is shared or made available to the Licensor
through the use of the Software.
7.
Charges
7.1.
The Licensee shall pay the Charges to the
Licensor in accordance with this Agreement.
7.2.
All amounts stated in or in relation to this
Agreement are, unless the context requires otherwise, stated exclusive of any
applicable value added taxes, which will be added to those amounts and payable
by the Licensee to the Licensor.
7.3.
The Licensor may change, add or modify the
applicable Charges under this Agreement at its own discretion from time to
time. The Licensor will provide a 30 days advanced notice prior to any changes
in Charges via email. The Licensor will not be liable to the Licensee or any
third-party for any modification or price change under this clause 7.3.
8.
Payments
8.1.
The Licensor shall issue invoices for the
Charges to the Licensee on or after the invoicing dates set out in Part 3 of
Schedule 1 (Software License Particulars).
8.2.
The Licensee must pay the Charges to the
Licensor within the period of 10 days following the issue of an invoice in
accordance with this Clause 8.
8.3.
The Licensee must pay the Charges with
crypto, credit card, direct debit or bank transfer (using such payment details
as are notified by the Licensor to the Licensee from time to time).
8.4.
If the Licensee does not pay any amount
properly due to the Licensor under this Agreement, the Licensor may:
(a) charge the
Licensee interest on the overdue amount at the rate of 16% per annum or the highest interest rate permitted
by the governing law (which interest
will accrue daily until the date of actual payment and be compounded at the end
of each calendar month); or
(b) withhold any
further support and maintenance on the software solution, and use any
applicable and appropriate methods to temporarily block the operation of the
software until overdue amount has been properly received.
9.
Warranties
9.1.
The Licensor warrants to the Licensee that it
has the legal right and authority to enter into this Agreement and to perform
its obligations under this Agreement.
9.2.
The Licensor warrants to the Licensee that:
(a) the Software as
provided will conform in all material respects with the Software Specification;
(b) the Software will
be supplied free from viruses, worms, Trojan horses, ransomware, spyware,
adware and other malicious software programs; and
(c) the Software shall
incorporate security features reflecting the requirements of good industry
practice.
9.3.
The Licensor warrants to the Licensee that
the Software, when used by the Licensee in accordance with this Agreement, will
not infringe the Intellectual Property Rights of any person.
9.4.
The Licensee warrants to the Licensor that it
has the legal right and authority to enter into this Agreement and to perform
its obligations under this Agreement.
9.5.
All of the parties' warranties and
representations in respect of the subject matter of this Agreement are
expressly set out in this Agreement. To the maximum extent permitted by
applicable law, no other warranties or representations concerning the subject
matter of this Agreement will be implied into this Agreement or any related
contract.
9.6.
The Licensee warrants that they will not use
funds raised via the Software to pay Licensor fees. Licensor is not a
registered broker dealer under Section 15 of the Securities Exchange Act of
1934.
10.
Acknowledgements and warranty limitations
10.1.
The Licensee acknowledges that complex
software is never wholly free from defects, errors and bugs; and subject to the
other provisions of this Agreement, the Licensor gives no warranty or
representation that the Software will be wholly free from defects, errors and
bugs.
10.2.
The Licensee acknowledges that complex
software is never entirely free from security vulnerabilities; and subject to
the other provisions of this Agreement, the Licensor gives no warranty or
representation that the Software will be entirely secure.
10.3.
The Licensee acknowledges that the Software
is only designed to be compatible with that software specified as compatible in
the Software Specification; and the Licensor does not warrant or represent that
the Software will be compatible with any other software.
10.4.
The Licensee acknowledges that the Licensor
will not provide any legal, financial, accountancy or taxation advice under
this Agreement or in relation to the Software; and, except to the extent
expressly provided otherwise in this Agreement, the Licensor does not warrant
or represent that the Software or the use of the Software by the Licensee will
not give rise to any legal liability on the part of the Licensee or any other
person.
10.5.
The Licensee acknowledges that the Licenser
does not provide or organize trading of financial instruments, serve as an
investment intermediary, provide investment services to clients around
financial instruments, issue financial instruments, nor process payments.
10.6.
Licensee acknowledges and understands that
Licensor is not responsible for any and all regulatory filings, submissions,
and notices that are required of an entity issuing a security under the
Securities Act of 1933 (“Securities Act”). Licensor is not an issuer or an
Affiliate of Licensee. Licensee is not relying on Licensor in any capacity to
comply with seeking any exemption to the Securities Act. Licensee agrees to
conduct all offering compliance on its own and is not relying on Licensor.
11.
Limitations and exclusions of liability
11.1.
Nothing in this Agreement will:
(a) limit or exclude
any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for
fraud or fraudulent misrepresentation;
(c) limit any
liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not
be excluded under applicable law.
11.2.
The limitations and exclusions of liability
set out in this Clause 11 and elsewhere in this Agreement:
(a) are subject to Clause 11.1; and
(b) govern all
liabilities arising under this Agreement or relating to the subject matter of
this Agreement, including liabilities arising in contract, in tort (including
negligence) and for breach of statutory duty, except to the extent expressly
provided otherwise in this Agreement.
11.3.
The Licensor shall not be liable to the
Licensee in respect of any loss of profits or anticipated savings, both if such
loss is claimed by the Licensee or a third party.
11.4.
The Licensor shall not be liable to the
Licensee in respect of any loss of revenue or income.
11.5.
The Licensor shall not be liable to the
Licensee in respect of any loss of use or production.
11.6.
The Licensor shall not be liable to the
Licensee in respect of any loss of business, contracts or opportunities.
11.7.
The Licensor shall not be liable to the Licensee
in respect of any loss or corruption of any data, database or software.
11.8.
The Licensor shall not be liable to the
Licensee in respect of any special, indirect or consequential loss or damage.
11.9.
Subject to the limitations set out herein,
the Licensee hereby indemnifies and holds harmless the Licensor for and against
any losses, damages, costs, expenses, liabilities and claims which the Licensor
may suffer or incur as a result of claims raised by a third party against
Licensor.
11.10.
The Licensor shall assume no responsibility
with respect to the STO offered by the Licensee and the Licensor has no
contractual relationship with the investors of the STO.
12.
Access and audit access rights
12.1.
The Licensor, shall upon reasonable notice
and during normal working hours, have access to all electronic systems and
records maintained by the Licensee containing the Software and any data
pertaining to its use, and shall have the right to audit such records at any
reasonable time or times during the Term and for a period of up to two (2)
years after termination of this Agreement. The Licensor performing such audit
shall have the right to conduct such audit no more than twice per calendar
year.
13.
Termination
13.1.
The Licensor may terminate this Agreement by
giving to the Licensee not less than 90 days' written notice of
termination after the end of the Minimum Term.
13.2.
The Licensee may terminate this Agreement by
giving to the Licensor not less than 90 days' written notice of
termination after the end of the Minimum Term.
13.3.
Either party may terminate this Agreement
immediately by giving written notice of termination to the other party if:
(a) the other party
commits a material breach of this Agreement, and the breach is not remediable;
(b) the other party
commits a material breach of this Agreement, and the breach is remediable but
the other party fails to remedy the breach within the period of 10 days
following the giving of a written notice to the other party requiring the
breach to be remedied; or
(c) the other party persistently
materially breaches this Agreement
13.4.
Either party may terminate this Agreement
immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its
business;
(iii) is or becomes unable to pay its debts as they fall
due;
(iv) is or becomes
insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any
arrangement or composition with its creditors;
(b) an administrator,
administrative receiver, liquidator, receiver, trustee, manager or similar is
appointed over any of the assets of the other party;
(c) an
order is made for the winding up of the other party, or the other party passes
a resolution for its winding up (other than for the purpose of a solvent
company reorganisation where the resulting entity will assume all the
obligations of the other party under this Agreement); or
13.5.
The Licensor may terminate this Agreement
immediately by giving written notice to the Licensee if:
(a) any amount due to
be paid by the Licensee to the Licensor under this Agreement is unpaid by the
due date and remains unpaid upon for thirty (30) days following Licensor’s
written notice to Licensee of such overdue payment (a “Late Payment Notice”).
(b) the
Licensor has given to the Licensee at least 10 days' written notice, following
the failure to pay, of its intention to terminate this Agreement in accordance
with this Clause 13.5.
14.
Effects of termination
14.1.
Upon the termination of this Agreement, all
of the provisions of this Agreement shall cease to have effect, save that the
following provisions of this Agreement shall survive and continue to have
effect (in accordance with their express terms or otherwise indefinitely):
Clauses 1, 8.2, 8.4, 11, 14, 16 and 17.
14.2.
Except to the extent that this Agreement
expressly provides otherwise, the termination of this Agreement shall not affect
the accrued rights of either party.
14.3.
For the avoidance of doubt, the licenses of
the Software in this Agreement shall terminate upon the termination of this
Agreement; and, accordingly, the Licensee must immediately cease to use the
Software upon the termination of this Agreement.
14.4.
Within 2 Business Days following the
termination of this Agreement, the Licensee shall:
(a) irrevocably delete
from all computer systems in its possession or control all copies of the
Software,
and if the Licensor so requests the Licensee
shall procure that a director of the Licensee certifies to the Licensor, in a
written document signed by that person and provided to the Licensor within 5
Business Days following the receipt of the Licensor's request, that the
Licensee has fully complied with the requirements of this Clause 14.4.
Furthermore, Licensor may use any applicable
and appropriate methods to block and halt the operation of the software.
15.
Processing of Personal Data
15.1.
As the Licensee’s website for signing up new
clients may be hosted on a server supplied by the Licensor, the Licensor may
receive personal data (as defined in EU GDPR regulation) if entered by
potential clients of the Licensee.
15.2.
In this case the Licensor shall act as a data
processor in respect of such personal data and will, in relation to such
personal data, act only upon instructions given to it by the Licensee, who
shall be the controller of such personal data.
15.3.
The Licensor shall process personal data
provided to it by the Licensee pursuant to this Agreement in compliance with
applicable EU regulations on processing of personal data.
15.4.
For the purposes of verifying compliance with this
Agreement, particularly the applicable Charges, the Licensor can collect and
process the Licensee’s usage metrics such as, but not limited to, the number of
projects on the Licensee’s platform, the number of new, active and inactive
users, investments made by the users, and other specific project metrics.
16.
Force Majeure
16.1.
The Parties acknowledge that force majeure
may be relevant for this Agreement as the services and access to the Software
as provided by the Licensor may be restricted or delayed due to force majeure
events outside the control of Licensor.
16.2.
The Licensor shall be entitled to restrict,
close or in any other way disable the access to the Software in the event of a
force majeure situation. A force majeure event shall be any extraordinary
situation beyond the control of either party, an act of God, which shall
relieve both Parties from liability against each other.
17.
Compliance
17.1.
The Licensee hereby undertakes to have all
relevant and sufficient licenses in its jurisdiction to offer its business
model including the use of the Software as provided by Licensor. The Licensee
furthermore undertakes to be compliant with all legal and regulatory
requirements in the jurisdictions where it is active and offering its services
and products.
17.2.
The Licensor is duly and validly registered
for business as a software provider.
18.
Notices
18.1.
The parties' contact details for notices
under this Clause 18 are as follows:
(a) in the case of
business and license related notices sent by the Licensee to the Licensor, [email protected]; in case of technical questions and issue reports, [email protected]
(b) in the case of notices sent by
the Licensor to the Licensee, the contact information indicated by the Licensee
during sign up will be employed.
18.2.
The addressee and contact details set out in
Clause 18.1 may be updated from time to time by a party giving written notice
of the update to the other party in accordance with this Clause 18.
19.
General
19.1.
Licensor is allowed to use Licensee as a
reference, on its website, in a press release, and in other relevant marketing
material. Licensee will participate in making a good press release and in
distributing this within its network.
19.2.
No breach of any provision of this Agreement
shall be waived except with the express written consent of the party not in
breach.
19.3.
If any provision of this Agreement is
determined by any court or other competent authority to be unlawful and/or
unenforceable, the other provisions of this Agreement will continue in effect.
If any unlawful and/or unenforceable provision would be lawful or enforceable
if part of it were deleted, that part will be deemed to be deleted, and the
rest of the provision will continue in effect (unless that would contradict the
clear intention of the parties, in which case the entirety of the relevant
provision will be deemed to be deleted).
19.4.
This Agreement may not be varied except by a
written document signed by or on behalf of each of the parties.
19.5.
Neither party may without the prior written
consent of the other party assign, transfer, charge, license or otherwise deal
in or dispose of any contractual rights or obligations under this Agreement.
19.6.
This Agreement is made for the benefit of the
parties, and is not intended to benefit any third party or be enforceable by
any third party. The rights of the parties to terminate, rescind, or agree
to any amendment, waiver, variation or settlement
under or relating to this Agreement are not subject to the consent of any third
party.
19.7.
This Agreement shall constitute the entire
agreement between the parties in relation to the subject matter of this
Agreement, and shall supersede all previous agreements, arrangements and
understandings between the parties in respect of that subject matter.
19.8.
This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
19.9.
Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be determined by final and binding
arbitration administered by the American Arbitration Association (“AAA”) under
its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”).
The award rendered by the arbitrator shall be final, non-reviewable and non-appealable
and binding on the parties and may be entered and enforced in any court having
jurisdiction, and any court where a party or its assets is located (to whose
jurisdiction the parties consent for the purposes of enforcing the award).
There shall be one arbitrator agreed to by the parties within twenty (20) days
of receipt by respondent of the request for arbitration or in default thereof
appointed by the AAA in accordance with its Commercial Rules. If any dispute or
difference shall at any time arise between the Parties to this Agreement or any
clause or their respective rights, claims or liabilities hereunder or otherwise
in any manner whatsoever, in relation to or arising out of or concerning this
Agreement, the Parties shall promptly and in good faith negotiate with a view
to its amicable resolution and settlement. In the event no amicable resolution
or settlement is reached within a period of fifteen (15) days from the date on
which the dispute or difference arose, such dispute or difference shall be
referred to a mutually acceptable single arbitrator. The seat or place of
arbitration shall be New York, New York. The arbitration shall be conducted and
the award shall be rendered in the English language.
20.
Interpretation
20.1.
In this Agreement, a reference to a statute
or statutory provision includes a reference to:
(a) that statute or
statutory provision as modified, consolidated and/or re-enacted from time to
time; and
(b) any subordinate legislation made
under that statute or statutory provision.
20.2.
The Clause headings do not affect the
interpretation of this Agreement.
20.3.
References in this Agreement to
"calendar months" are to the 12 named periods (January, February and
so on) into which a year is divided.
20.4.
In this Agreement, general words shall not be
given a restrictive interpretation by reason of being preceded or followed by
words indicating a particular class of acts, matters or things.
SCHEDULE 1
(SOFTWARE LICENSE PARTICULARS)
1. Specification
of Software
The
Software includes the products, services, functions, systems, and capabilities
listed in the DigiShares Product Sheet.
Deployment
will begin, once the Onboarding Process has been completed.
2. Software
license
Software
may be used only by Licensee and its employees and management.
There
is no limit on the number of users or issuance rounds.
3. Payment
a. Licensee
shall pay a one-time onboarding fee (the “Onboarding Fee”) promptly
after accepting this Agreement. This includes: software licenses, tech setup,
training of staff. * See terms on “Sign Up” page, to be amended to this
agreement.
b. Licensee
shall pay a fee on the first calendar day of each month during the Term for use
of the Software (the “Platform Fee”). The Platform fee includes
upgrades, bug fixes, tech support, server management and the ability to manage
two assets through the Software. Upon execution, the Licensee commits to a
minimum of 3 months of non-discounted Platform Fees in the lifetime of the
Agreement. ** See terms on “Sign Up” page, to be amended to this agreement.
c. Licensee
shall pay a fee if additional assets are managed through the Software (the “Additional
Asset Fee”). The Additional Asset Fee shall be paid on the first
calendar day of each month during the Term for use of the Software and is based
on the number of assets actively managed through the Software during the
previous calendar month, as follows:
● $200/mo./asset
for assets 3 to 5
● $100/mo./asset
for assets 6 to 10
● $50/mo./asset
for assets 11+
● An
actively managed asset is defined as an asset with 5 investors or more in its
cap table.
d. Trading
on the DigiShares bulletin board is free of charge, with the exception of
applicable gas fees charged by the blockchain network chosen by the Licensee.
No transaction fees are charged by the Licensor. Licensee must determine the
need for any regulatory licenses in their jurisdiction to enable secondary
trading on the bulletin board.
e. Licensee
shall pay a $100 monthly fee to the Licensor if the Dwolla integration
is selected + additional transaction fees charged by Dwolla.
All values in this Section 3 are
expressed in US Dollars.
