Last modified: January 23, 2019
If you signed an offline variant of this Agreement for use of the Mantle Platform Services under the same Mantle Platform Account, the terms below do not apply to you, and your offline terms govern your use of the Mantle Platform Services.
If you are accessing the Mantle Platform Services as a customer of a Mantle Platform reseller, the terms below do not apply to you, and your agreement with your reseller governs your use of the Mantle Platform Services.
This Mantle Platform License Agreement (the "Agreement") is made and entered into by and between Mantle Technology and the entity or person agreeing to these terms ("Customer"). "Mantle" or "Licensor" means MANTLE TECHNOLOGY INC. a Quebec corporation with offices at 500-506 rue McGill, Montreal, Quebec, H2Y 2H6, Canada.
This Agreement is effective as of the earlier of: (a) the date Customer clicks to accept the Agreement; or (b) the date Customer first connects to the Admin Console (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do no click to accept. This Agreement governs Customer's access to and use of the Service. For an offline variant of this Agreement, you may contact Mantle for more information.
1.1. Subscription Right. Subject to terms and conditions of this Agreement, during the Term, Mantle grants a non-transferable, non-exclusive, non-sub-licensable right (the "Subscription Right") allowing Customer to: (a) use the Services, (b) integrate the Services into any Application that has material value independent of the Services, and (c) use any Software provided by Mantle as part of the Services. Mantle will provide the Services to Customer, for use by Customer and its agents, contractors, employees and clients (collectively, including Customer, the "Users")
1.2. Admin Console. As part of receiving the Services, Customer will have access to the Admin Console, through which Customer may administer the Services.
1.3. Data Location. Mantle may process Customer Data anywhere Mantle or its agents maintain facilities. By using the Services, Customer consents to this processing of Customer Data. Under this Agreement, Mantle is merely a data processor. Customer Data will be stored on Virtual Blockchain(s).
1.4. Accounts. Customer requires an Account or an API Key to use the Services. Customer is responsible for the information it provides to create the Account, the security of passwords and API Key(s) related to its Account, and for any use of its Account and the API Key(s). If Customer becomes aware of any unauthorized use of its password, its Account or the API Key(s), Customer will notify Mantle as promptly as possible. Mantle has no obligation to provide Customer multiple Accounts.
1.5. New Services. From time to time, Mantle may: (i) make new applications, tools, features, or functionality available through the Services and (ii) add new services to the "Services" definition (by adding them at the URL set forth under that definition), the use of which may be contingent upon Customer's agreement to additional terms.
a. To the Agreement. From time to time, Mantle may make changes to this Agreement, including pricing (and any linked documents). Unless otherwise noted by Mantle, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. Mantle will provide at least 90 days' advance notice for materially adverse changes to any SLAs by either:(i) sending an email to Customer's primary point of contact; (ii) posting a notice in the Admin Console; or (iii) posting a notice to the applicable SLA webpage. If Customer does not agree to the revised Agreement, please stop using the Services. Mantle will post any modification to this Agreement to the Terms URL.
b. To the Services. From time to time, Mantle may make commercially reasonable updates to the Services. If Mantle makes a material change to the Services, Mantle will inform Customer, provided that Customer has subscribed with Mantle to be informed about such change.
c. To the Fees. From time to time, Mantle may change the Fees of this Agreement to be effective (i) not less than 15 days following written notice to Customer of such changes; and (ii) immediately, in the event of a material change to Mantle’s cost of delivery of Services as a result of (a) a change in any applicable law, regulation, or similar governmental action, (b) a ruling by a court of competent jurisdiction, or (c) change to Mantle’s cost to access the Blockchain Infrastructure.
d. To the Security and Data Processing Terms. Mantle may change the Security and Data Processing Terms to comply with applicable law, applicable regulation, court order, or guidance issued by a governmental regulator, where such change is expressly permitted by the Security and Data Processing Terms. If Mantle makes a material change to the Security and Data Processing Terms in accordance with this Section, Mantle will post the modification to the URL containing those terms.
1.7 Security and Data Processing Terms. The Security and Data Processing Terms are incorporated by this reference into the Agreement.
2.1. Free Usage. Certain Services are provided to Customer without charge up to the Fee Threshold, as applicable.
2.2. Online Invoicing. At the end of the applicable Fee Accrual Period, Customer will receive an electronic invoice from Mantle for all charges accrued above the Fee Threshold based on (i) Customer's use of the Services during the previous Fee Accrual Period; and/or (ii) any Committed Purchases. Customer will be responsible for all Fees and will pay all Fees in the currency stated in the invoice. Customer's obligation to pay all Fees is non-cancellable. Mantle's measurement of Customer's use of the Services is final. If Customer elects to pay with credit card, debit card, or PayPal, Mantle will charge Customer all Fees at the end of the Fee Accrual Period. If Customer elects to pay via wire transfer, all Fees are due as stated in the invoice.
2.3. Taxes. Customer will be responsible for all sales, use, value added, or other taxes or duties, as applicable, payable with respect to Fees or otherwise arising out of or in connection with this Agreement, other than Mantle’s income taxes. Customer may deduct from payments to non-residents of Canada or the US any taxes or other amounts required to be withheld under applicable tax laws (including portion of any payment which is subject to Section 105 of the Regulations to the Income Tax Act (Canada) for services performed in Canada by a non-resident of Canada) and will remit the withheld amounts directly to the applicable taxing authority on or before their due date.
2.4. Invoice Contestation. Any invoice contestation must be initiated prior to the invoice due date. If Mantle determines there were billing inaccuracies, Mantle will issue a credit to Customer. If the contested invoice is unpaid, Mantle will apply the credit to the contested invoice and Customer will be responsible for paying the resulting net balance due on that invoice. Otherwise, the credit will be applied against Fees incurred by Customer in the next Fee Accrual Period(s).
2.5. Refunds. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within ninety days after charged. Refunds are at the discretion of Mantle and will only be in the form of credit for the Services.
2.6. Suspension of Service. Late payments may bear interest rate at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the invoice due date until paid in full. Customer will be responsible for all reasonable expenses (including legal and collection fees) incurred by Mantle in collecting late amounts. If any invoice of Customer is 90 days or more overdue, except with respect to charges under good faith contestation, in addition to any other rights and remedies, Mantle reserves the right to treat Customer’s account as either a Suspended Account or Cancelled Account without liability to Customer until such account is paid in full; provided, that Mantle notifies Customer, in writing, of the delinquency and Customer fails to pay all undisputed amounts due within 15 days from receipt of such notice. “Suspended Account” shall mean that all access to Services will be blocked and all support and other services will cease until Customer makes the full payment due and owing, including all Fees accruing during the suspension period. “Cancelled Account” shall mean all files and information within Customer’s Account directories will be permanently erased and Customer’s Account, Subscription Right and all support and other services will be terminated. A Suspended Account or Cancelled Account does not remove Customer’s obligation to pay those amounts outstanding to the date of such suspension or cancellation or thereafter for the remainder of the Term or Renewal Term, as the case may be.
2.7. No Purchase Order Reference Required. Mantle is not required to provide a purchase order reference on Mantle's invoice.
3.1. Fair Use Policy. Customer is solely responsible for its Customer Data and for making sure its Customer Data comply with Mantle's Fair Use Policy. Mantle reserves the right to review Customer Data for compliance with Mantle's Fair Use Policy. Customer is responsible for ensuring all Customer End Users comply with Customer's obligations under the Fair Use Policy, the Service Specific Terms, and the restrictions in Sections 3.3 and 3.5.
Customer agrees not to, and not to permit or suffer third parties to use the Services:
a. to engage in, promote or encourage illegal activity;
b. for any unlawful, invasive, infringing, defamatory or fraudulent purpose;
c. to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
d. to violate, or encourage the violation of, the legal rights of others (for example, this may include allowing third parties to infringe or misappropriate the intellectual property rights of others in violation of the Copyright Modernization Act of Canada (Canada) or Digital Millennium Copyright Act (U.S.A.));
e. to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;
f. to disable, interfere with or circumvent any aspect of the Services;
g. to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations (“spam”); or
i. to use the Services, or any interfaces provided with the Services, to access any other Mantle product or service in a manner that violates the terms of service of such other Mantle product or service.
3.2. Privacy. Customer will obtain and maintain any required consents necessary to permit the processing of Customer Data under this Agreement.
3.3. Restrictions. Customer will not, and will not permit or suffer Users or any of Customer’s end clients, directly or indirectly, to do any of the following acts : (i) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of Services; (ii) modify, translate, or create derivative works based on Services; (iii) use the Services for High Risk Activities; (iv) create multiple Accounts to simulate or act as a single Account or otherwise access the Services in a manner intended to avoid incurring Fees or exceed usage limits or quotas; (v) create any link to Services or frame or mirror any content contained or accessible from, Services; (vi) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to Customer in connection with Users’ use of Services, which may include without restriction, the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada) and any other applicable legislation in Canada or in Quebec or any other jurisdiction enacted from time to time related to privacy, publicity, data protection, electronic communications and anti-spamming laws (and, without limiting the generality of the foregoing, Customer is solely and exclusively responsible for the collection, accuracy, currency, quality, legality, completeness and use of Customer Data that is stored on the System, disclosed to or used by Customer, Users or other authorized service providers in connection with Services); (vii) wilfully tamper with the security of the Systems or tamper with other customer accounts of Mantle, (viii) access data on the System or the Blockchain Infrastructure not intended for Customer, (ix) access a subdomain name, a server or account on the System that Customer is not authorized to access, (x) attempt to log into, probe, scan or test the vulnerability of any Systems or to breach the security or authentication measures without proper authorization; or (xi) wilfully render any part of the System or the Blockchain Infrastructure unusable.
3.4. Communication. Customer is solely responsible for the content of all communications (including without limitation, Electronic Communications) using the Customer’s Account. Customer agrees that Users will not use Services to communicate, by way of Electronic Communication or otherwise, any message or material that (i) is libellous or harmful to minors; (ii) is unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offence, under any applicable law or regulation.
3.5. Documentation. Mantle provides Documentation that may direct the Customer's use of the Services. The Documentation may specify restrictions on how the Applications may be built or the Services may be used and Customer will comply with any such restrictions specified.
4.1. Term and Renewal Term. The term of this Agreement shall commence on the Effective Date and continue for a one (1) year term. Thereafter, it shall continue on a year-to-year basis, until terminated by prior written notice of Customer to Mantle or by Mantle by prior written notice to Customer at least one hundred eighty (180) days prior to any such renewal, unless earlier terminated in accordance with the provisions of this Agreement.
4.2. Suspension of Service. If Mantle becomes aware that Customer's or any Customer End User's use of the Services violates the Fair Use Policy, Mantle will give Customer notice of the violation by requesting that Customer correct the violation. If Customer fails to correct the violation within 24 hours of Mantle's request, then Mantle may Suspend all or part of Customer's use of the Services until the violation is corrected.
Mantle may immediately suspend all or part of Customer's use of the Services if: (a) Mantle believes Customer's or any Customer End User's use of the Services could adversely impact the Services, other customer's or their end user's use of the Services, or the Blockchain Infrastructures or servers used to provide the Services; (b) there is suspected unauthorized third-party access to the Services; (c) Mantle believes it is required to suspend immediately to comply with applicable law; or (d) Customer is in breach of Section 3.3 (Restrictions) or 3.4 (Communication). Mantle will lift any such suspension when the circumstances giving rise to the suspension have been resolved. At Customer's request, unless prohibited by applicable law, Mantle will notify Customer of the basis for the Suspension as soon as is reasonably possible.
4.3. Termination. This Agreement may be terminated by one party upon the occurrence of any of the following events:
(a) if the other party fails to perform any of its obligations, or there is a material breach of any of the provisions of this Agreement; provided that the party terminating this Agreement shall first have given prior written notice to the other of its intent to terminate, together with details of the default causing the termination, and the party receiving such notice shall have been given 30 days to cure any such default;
(b) if the other party (A) ceases or threatens to cease to carry on its business, commits an act of bankruptcy, makes an assignment or bulk sale of its assets, or proposes a compromise or arrangement to its creditors, or (B) is subject to any proceeding that is taken to (i) compromise or make an arrangement with that party’s creditors, (ii) obtain an order to assign that party into bankruptcy or winding-up that party, or (iii) obtain an order to appoint a receiver over any part of that party’s assets, and in each case, such proceeding are not dismissed within 60 days of such proceeding being initiated; or
(c) if the Customer has not accessed the Admin Console or has had no network activity for a period of 60 days, provided that Mantle first have given a 30 days advance notice of its intent to terminate ;
4.4. Events on Termination. Upon termination of this Agreement:
(a) if Customer or Mantle terminates this Agreement in accordance with Section 4.3, Customer shall pay those Fees that have accrued up to the date of termination;
(b) each of the parties shall release the other from all obligations under this Agreement, save and except for obligations accrued and owing up to the effective date of termination and those surviving obligations set forth in Section 4.4(c) hereof; and
(c) the provisions in Section 2, 3, 4, 5, 9, 10 and 11 of this Agreement shall continue in force following termination of this Agreement.
5.1. Intellectual Property Rights. The Services and all intellectual property rights therein (including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights, in and to Services, all modifications, changes, enhancements, or additions thereto) and all intellectual property rights created by or in relation to the provision of any support or other services by Mantle pursuant to this Agreement (collectively, “Mantle's Intellectual Property”), are owned by Mantle. Except for the Subscription Right, nothing in this Agreement gives Customer or its Users any right, title or interest in, to or under any of Services or any Mantle's Intellectual Property and Mantle reserves all such rights.
5.2. Customer Data. Mantle will not access or use Customer Data, except as necessary to provide the Services and TSSs to Customer. Customer retains all right, title and interest in and to all Customer Data, subject to the license rights granted to Mantle necessary to provide Services and any support and other services under this Agreement. In particular, Customer grants Mantle a non-exclusive, irrevocable, perpetual and royalty-free right to use, access and modify Customer Data as required to provide the Services and any support and other services. Customer will respond to enquiries by Mantle concerning any Customer Data provided to Mantle and to promptly address all enquiries concerning such information.f
5.3. Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), that is designated in writing as confidential as well as Customer Data and the terms and conditions of this Agreement (including pricing and other terms). The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). Mantle will restrict access to Customer’s Confidential Information to only those Mantle employees, consultants and/or subcontractors necessary to successfully provide Services and any support and other services pursuant to this Agreement. Mantle shall cause each of its consultants and subcontractors who may provide Services, support or other services to Customer to enter into a confidentiality agreement in favour of Customer on terms and conditions similar to this Section. Confidential Information shall not include information which: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (iv) has been otherwise lawfully known or received by the Receiving Party. In receiving Customer Data from Customer, Mantle agrees that: (a) all such Customer Data shall be used only in the manner and for such purposes that Customer and Mantle have agreed upon in writing; and (b) Mantle, as requested or directed by Customer, shall either return to Customer or destroy such Customer Data provided by Customer to Mantle. Mantle will use a secure and reliable process so that following destruction, the Confidential Information is not recoverable and the electronic device or media cannot be read by any commercially available tool. If requested by the Customer, Mantle will produce a written certification of destruction from a reputable external vendor certifying secure destruction of the Confidential Information.
5.4. Required Disclosure. Section 5.3 will not be construed to prohibit the disclosure of Confidential Information if such disclosure is required by law or order of the court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
5.5. Security Breach Report. In the event of a Security Breach, Mantle will (i) notify Customer immediately in writing at the address provided for such purpose or otherwise designated by Customer in writing; (ii) assist Customer in the management of any consequences arising from it; (iii) take any reasonable steps necessary to mitigate any harms resulting from it; and (iv) take appropriate steps to prevent its recurrence and notify Customer of those steps. For the purpose of this Agreement, Security Breach means any actual or suspected violation of security or confidentiality of Customer’s Confidential Information, including any unauthorized use, disclosure, or loss of or any inability to account for such information.
Mantle will provide TSS to Customer in accordance to the TSS Guidelines during the Term, provided Customer paid applicable support Fees. Certain TSS include a minimum recurring Fee.
7.1. Discontinuance of Services. Subject to Section 7.2., Mantle may discontinue any Services or feature for any reason at any time without liability to Customer.
7.2. Deprecation Policy. Mantle will announce its intention to discontinue or make backward incompatible changes to the Services at https://www.mantleblockchain.com/terms/deprecation. Mantle will use commercially reasonable efforts to continue operating the Services and features identified at the URL in the previous sentence without these changes for at least six month after that announcement, unless (as Mantle determines in its reasonable good faith judgment):
(i) required by law or third party relationship, or
(ii) doing so may create a security risk or substantial economic or material technical burden.
The above policy is the "Deprecation Policy".
Mantle shall have the right to access Customer’s Account from time to time, for purposes of providing support, administration, invoicing and to inspect Customer’s utilization of Services so as to ensure Customer’s compliance with the provisions of this Agreement, as reasonably necessary in Mantle’s sole discretion.
9.1. Functionality Warranty. Mantle warrants that Services will operate in substantial conformity with the applicable documentation provided by Mantle. For any breach of this warranty, Customer’s sole and exclusive remedy and Mantle’s sole and exclusive liability, shall be for Mantle to correct any reported failure in Services causing a material breach of this warranty, or, if Mantle is unable to provide such correction, Customer shall be entitled to recover any paid portion of the Fees in respect of the non-conforming Services.
9.2. Security Warranty. Mantle has implemented Appropriate Security Measures. “Appropriate Security Measures” means commercially reasonable technical, physical and procedural controls to protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Mantle, whether by accident or otherwise. However, Customer acknowledges and agrees that, notwithstanding such Appropriate Security Measures, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to Services and Customer Data. Accordingly, Mantle cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
9.3. Exclusions: Except as expressly stated in this Section 9, there are no warranties or conditions (whether implied or arising by statute or otherwise in law or from a course of dealing or usage of trade) for Services. Mantle DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES AND CONDITIONS INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE. Mantle does not warrant that the functions contained in Services or any results derived from the Services will be accurate or effective to meet Customer’s requirements or needs, or that the operation of Services will be uninterrupted or error-free. Further, Mantle does not warrant that Services will be precisely as described in the documentation or that all errors will be corrected.
9.4. Limitation of Liability.
(a) EXCEPT FOR (I) A BREACH OF MANTLE'S OBLIGATIONS FOR CONFIDENTIAL INFORMATION, OR (II) MANTLE'S INTENTIONAL MISCONDUCT OR UNLAWFUL ACT, NEITHER Mantle OR ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS WILL BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, WHETHER OR NOT FORESEEABLE (INCLUDING, WITHOUT LIMITATION, LEGAL FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF THE ACTION INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LOSS OF BUSINESS, LOST PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, LOST DATA OR ANY FAILURE OF SECURITY RESULTING IN ANY WAY FROM THE CUSTOMER OR USERS’ USE OF ServiceS OR THE BLOCKCHAIN INFRASTRUCTURE OR ARISING OUT OF, OR RESULTING FROM, THE USE OF OR INABILITY TO USE ServiceS OR THE BLOCKCHAIN INFRASTRUCTURE.
(b) The Limitation of Liability provisions (Subsection 9.4(a)) shall not apply to any indemnification given by Mantle to Customer pursuant to Section 10.
(c) No action against either party or any of its directors, officers, employees or agents, regardless of form (including negligence), arising out of or in any way related to this Agreement may be brought by the other party more than two (2) years after the cause of action has arisen.
(d) The essential purpose of this Section 9 is to limit the potential liability of Mantle arising under this Agreement. The parties acknowledge that the limitations set forth in this Section 9 are integral to the amount of consideration levied in connection with the license of Services and Support (as described in Exhibit A) and that, were Mantle to assume any further liability, such consideration would out of necessity, been set much higher.
10.1. Customer Indemnification. Customer agrees to indemnify and hold harmless Mantle and its officers, directors, shareholders, employees and agents from and against all third party Claims (as hereafter defined) arising from (i) any breach of Section 3.1, 3.3 and 3.4 or (ii) that Customer Data infringes, misappropriates or violates any copyrights, trademarks, trade secrets or other proprietary rights of, or has otherwise caused harm to, a third party. “Claim” shall mean all losses, liabilities, damages, claims, taxes, and all related costs and expenses incurred by a party hereto only as the direct result of third party claims against such party, including, without limitation, reasonable attorney’s fees and costs of investigation, litigation, settlement, judgment, interest and penalties.
10.2. Mantle Indemnification. Mantle shall indemnify and hold harmless Customer and its officers, directors, shareholders, employees and agents against all third party Claims for infringement, misappropriation or violation of copyrights, trademarks, trade secrets or other proprietary rights of a third party associated with any portion of Services. Notwithstanding the foregoing (but subject to Section 10.1), if Mantle reasonably believes that the Users’ use of any portion of Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s copyrights, trademarks, trade secrets or other proprietary rights, then Mantle may, at its sole option and expense: (i) procure for Customer the right to continue using the such Services or any portion thereof; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action described in this section; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of Services as set out herein. Mantle shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of Services with other equipment, software, apparatus, devices or things not supplied by Mantle or in a manner not substantially consistent with Mantle’s specifications, documentation and instructions. This section states the entire liability of Mantle for any type of infringement or breach whatsoever of intellectual property rights of third parties resulting from or relating to the provision by Mantle of Services.
10.3. Mutual Provisions. Each party’s indemnity obligations in this Section 10 are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defence and all related settlement negotiations with respect to the Claim; and (iii) the aggrieved party shall cooperate fully to the extent necessary, and executes all documents necessary for the defence of such Claim.
11.1. Entire Agreement. This Agreement, inclusive of the Schedules and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, covenants, arrangements and discussions with respect thereto.
11.2. Marketing. Mantle shall have the right to use Customer’s name and logo to identify Customer as a customer of Mantle’s on Mantle’s website, Mantle’s corporate promotional and marketing literature, or otherwise, or use Customer’s name or mark in any press release or any other public message, without first getting Customer’s consent. Customer is permitted to state publicly that it is a customer of the Services, consistent with Trademark Guidelines.
11.3. Relationship of Customer and Mantle. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or agent representative of the other party.
11.4. Non-Exclusivity. Nothing in this Agreement will be construed to prevent Mantle from marketing, licensing, selling or otherwise providing Services or any aspects of Mantle’s technology or services to any third party. Nothing in this Agreement will be construed to prevent Customer from obtaining services similar to Services from a third party.
11.5. Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
11.6. Assignment. Neither party may transfer or assign its rights and obligations hereunder without prior written approval of the other party; provided, that Mantle may transfer and assign all (but not less than all) of its rights and obligations hereunder to the acquiring entity in the event of any change of majority ownership stake, or greater than 50% of the assets and liabilities of Mantle, by purchase or merger during the term of this Agreement. This Agreement shall be binding upon and shall inure to the benefit of Mantle and Customer and each of their successors and permitted assigns.
11.7 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
11.8. Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable in connection therewith, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Quebec and all courts competent to hear appeals therefrom.
11.9. Notices. Any notices, demands and other communications hereunder shall be in writing and shall be delivered, sent by electronic transmission, or by mail, registered or certified, return receipt requested, postage prepaid, and addressed to the other's party's legal department and primary point of contact. The email address for notices being sent to Mantle's Legal Department is email@example.com. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
11.10. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
11.11. Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
11.12. Dispute Resolution. Any dispute, controversy or claim arising under, out of or relating to this Agreement or any Addendum and any subsequent amendments thereto, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims (“Dispute”) if not resolved by the applicable project managers in a prompt manner shall be escalated to the President of Mantle and the Chief Executed Officer or Chief Information Officer of the Customer prior to commencing any litigation. If any dispute remains unresolved for more than thirty (30) days, each party shall have the right to commence litigation. Notwithstanding the foregoing, the parties agree that monetary damages for breach of confidentiality under this Agreement or any Addendum may not be adequate and the non-breaching party shall be entitled to injunctive relief without recourse to the foregoing dispute resolution procedures.
In addition to the terms defined in the body of the Agreement, the following terms have the following meanings:
"Account" means Customer's Mantle Platform account.
“Admin Console” means the online console and tools provided by Mantle to Customer to administer the Services.
"API Key" means an alphanumeric key that is uniquely associated with Customer's Account.
“API” means Mantle Services’ Application Program Interfaces and is the set of subroutine definitions, protocols, and tools for building application software .
"Application(s)" means any web or other application Customer creates using the Services, including any source code written by Customer to be used with the Services.
“Blockchain Infrastructure” means the blockchain infrastructure(s) accessible through the Services, namely the “Waves Platform” or any other blockchain platform which may be implemented by Mantle.
"Committed Purchase(s)" means the Customer's commitment to spend a specified amount for use of the Services over a specified period of time, whether Customer uses those Services or not. A Committed Purchase may be made using the Admin Console.
“Customer’s Account” has the meaning set forth in Section 2.
“Customer Data” means any data, information (including, without limitation, any information about an identifiable individual or an individual whose identity may be inferred or determined from the information) or other materials of any nature recorded in any form whatsoever disclosed or provided to Mantle by the Users (as defined in Section 2) in the course of using Services, all information generated by the Users’ use of Services and any content provided by Mantle as part of any training modules or services for Customer.
"Documentation" means the documentation, updated from time to time, made available by Mantle to its customer for use with the Services at https://developer.mantleblockchain.com.
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or in part electronically.
"Fees" means the applicable fees for each Service and any applicable Taxes.The Fees for each Service are set forth here: https://www.mantleblockchain.com/fees .
"Fee Accrual Period" means a calendar month or another period specified by Mantle in the Admin Console.
"Fee Threshold" means the threshold applicable for certain Services, which may be updated from time to time, as specified at https://www.mantleblockchain.com/fees.
"TSS" means the technical support services provided by Mantle to the administrators under the TSS Guidelines.
"TSS Guidelines" means Mantle's technical support services guidelines then in effect for the Services. TSS Guidelines are at the following URL: https://www.mantleblockchain.com/terms/tssg.
"Security and Data Processing Terms" means the terms set forth at https://www.mantleblockchain.com/terms/sdpt
“Services” means the various software, data applications and technologies identified at https://mantleblockchain.com/terms/platform. Services shall be made available to Customer through API and the Admin Console from third party hosted facility and/or other systems used by Mantle to host Services (collectively, the "Systems").
“Virtual Blockchain” means a cryptographically linked data storage containers containing transaction data hosted on one or many blockchain platform.
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