Transparent Financial Systems, Inc.
Xandbox License Agreement
Version 1.0This Xandbox License Agreement (the “Agreement”) is a binding legal agreement by and between Transparent Financial Systems, Inc. (“TFS”) and the individual or entity that enters into this agreement by clicking “accept” or by downloading or using the TFS Materials (“Participant”) and governs Participant’s access to and use of the TFS Materials (defined below). If Participant is entering into this Agreement on behalf of an entity, then “Participant” as used herein will also refer to such entity. By downloading or using any TFS Materials, Participant represents that (i) Participant has read, understand, and agrees to be bound by this Agreement; and (ii) Participant has the authority to enter into this Agreement, as an individual and/or on behalf of the entity that Participant represents, as applicable. This Agreement. The parties desire for Participant to use and evaluate the Software (defined below) in accordance with the terms of this Agreement in order that TFS may demonstrate to Participant the capabilities of the Xand software protocol and governance platform (“Xandbox Testing”). If Participant does not agree to be bound by this Agreement, Participant may not download or use any of the TFS Materials. This Agreement will become effective upon the date of Participant’s acceptance hereof (the “Effective Date”).
Last Updated: December 14, 2022
- “Documentation” means any user instructions, manuals, online help files, or other documentation materials provided by TFS to Participant describing the use and operation of the Software.
- “Software” means the software packets and related materials provided by TFS for download in connection with the Xandbox Testing, including a fully specified Xand blockchain (as defined in the Documentation), a set of at least five Validator nodes(as defined in the Documentation), a set of at least two Member nodes complete with Member APIs (as defined in the Documentation), a set of mock Bank APIs (as defined in the Documentation), a Trust node (as defined in the Documentation), ancillary data files, modules, libraries, tutorials, and demonstration programs in connection therewith, and any updates thereto made available by TFS during the Term (defined below).
- “TFS Materials” means the Software, the Documentation, and any other materials provided by TFS to Participant in connection with the Agreement.
- License Grant. Subject to Participant’s ongoing compliance with the terms and conditions of this Agreement, TFS hereby grants Participant a non-exclusive, non-sublicensable, non-transferable, royalty-free license, during the Term (defined below) to download and use the Software, in executable code form, in order to deploy the Xandbox developer toolkit, solely for the purpose of Xandbox Testing.
- License Restrictions. Except as expressly permitted in writing by TFS, Participant agrees not to, and shall not cause or permit any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code, algorithms, or associated know-how of the Software (or any portion thereof); (ii) write or develop any program based upon the Software or any portion of the foregoing, or otherwise use the TFS Materials in any manner for the purpose of developing, distributing or making available any products or services; (iii) sell, sublicense, assign, rent, lease, transfer, or grant a security interest in the TFS Materials or any rights to the foregoing; or use the Software (or any portion thereof) for any purpose other than for Xandbox Testing; (iv) alter or remove any copyright, trademark, or other proprietary notices contained in the TFS Materials; (v) distribute, transfer, or otherwise make available the Software to any person other than its employees or contractors who have a strict need to know and who will use such TFS Materials in accordance with the terms of this Agreement; (vi) modify, copy, or make any derivative works of the TFS Materials; or (vii) otherwise use the TFS Materials except in accordance with the Terms of this Agreement. TFS may revoke Participant’s license at any time if TFS reasonably determines Participant or any of its employees or contractors may be in noncompliance with the foregoing.
- Open Source Software. The Software may include certain software that is subject to “open source” or “free software” licenses (“Open Source Software”). The Open Source Software is not subject to the terms and conditions of this Agreement, and instead, is licensed to Participant under the terms of the applicable Open Source Software. Nothing in this Agreement limits Participant’s rights under, or grants Participant rights that supersede, the licenses applicable to the Open Source Software.
- Delivery. As soon as reasonably practicable following the Effective Date, TFS will make the Software and Documentation available to Participant via an online, hosted software repository or other electronic means.
- Ownership. TFS and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the TFS Materials, 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, as well as any and all derivative works thereof, and nothing in this Agreement shall preclude or restrict TFS from using or exploiting any concepts, ideas, techniques or know-how of or related to the TFS Materials or otherwise arising in connection with TFS’ performance under this Agreement. All rights not expressly granted in this Agreement are reserved by TFS.
- Compliance with Laws. Each party represents and warrants that it will comply with all applicable laws, regulations, rules, ordinances and orders applicable to the use of the TFS Materials.
- Feedback. In exchange for the license granted to Participant hereunder, Participant agrees to use good faith efforts to use and evaluate the TFS Materials, and to promptly report to TFS any bugs, defects, errors, or suggestions for changes and improvements to the TFS Materials (collectively, “Feedback”). Participant hereby grants TFS a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit and commercialize such Feedback without restriction. Further, Participant acknowledges and agrees that Feedback may be used in the development of and be incorporated into a version of the TFS Materials that TFS may make available for commercial distribution (“Commercial Release”) or any other TFS products or services.
- No Obligation for Commercial Release. TFS has no obligation to create, distribute or otherwise offer a Commercial Release.
- Fees. Participant’s use of the TFS Materials under this Agreement is free of charge. Nothing herein shall limit TFS’ right to charge fees for any other products or services, including, without limitation, in connection with the products and/or services made available for Commercial Release.
- Term and Termination. The term of this Agreement will begin on the Effective Date and continue until terminated in accordance with this Section (the “Term”). TFS may terminate this Agreement immediately upon written notice to Participant at any time, for any or for no reason. Participant may terminate this Agreement upon written notice to TFS. Upon any expiration or termination of this Agreement: (i) the rights and licenses granted to Participant under this Agreement will immediately terminate; (ii) Participant will immediately cease using the TFS Materials; (iii) Participant will uninstall and delete any copies of the Software and Documentation in its possession or control, as applicable, and, upon TFS’ request, certify its compliance with the foregoing; and (iv) Participant will comply with all other reasonable instructions given by TFS with respect to the end of Xandbox Testing. Sections 2.2, 2.3, 3-6, and 8 through 14 will survive termination of this Agreement.
- Confidential Information. “Confidential Information” means any non-public information provided by a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Agreement that is either: (i) designated as confidential by the Disclosing Party at the time of disclosure; or (ii) should reasonably be considered confidential, given the nature of the information or the circumstances surrounding its disclosure. Notwithstanding the above, the TFS Materials and all portions thereof constitute the Confidential Information of TFS.
- Protection. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees who have a strict need to know and who are bound by confidentiality obligations no less restrictive than those set forth herein. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information in its possession or control, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence; provided, however, that the Receiving Party may retain, subject to the other terms of this Agreement, Confidential Information which it may be required by law or regulation or its internal recordkeeping policies to maintain, including copies of any computer records or files containing Confidential Information that have been created pursuant to its electronic archiving and/or back-up procedures.
- Exclusions. The confidentiality obligations set forth in Section 9.2 will not apply to any information that (i) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (ii) is lawfully provided to the Receiving Party by a third party free of any confidentiality obligations; (iii) was already known to the Receiving Party at the time of disclosure free of any confidentiality obligations; or (iv) the Receiving Party can demonstrate, by competent evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure (a) is necessary for the Receiving Party to enforce its rights under this Agreement; or (b) is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and, upon request, reasonably cooperates with the Disclosing Party in seeking an appropriate protective order.
- Third-Party Data. Participant will hold in strict confidence all information and data made available to Participant via its use of the TFS Materials, including information and data made available by other Participants, (all such data that is not TFS Materials, “Third-Party Data”) and use such Third-Party Data solely as necessary to use and evaluate the TFS Materials for Xandbox Testing during the Term. Participant agrees that Participant shall use such Third-Party Data solely in compliance with all applicable laws, rules, and regulations. Participant will not transfer, sell, or otherwise disclose such Third-Party Data or retain any such Third-Party Data following termination of this Agreement.
- Publicity. Participant will not make any public announcements referencing this Agreement, the Software, the TFS Materials, or Participant’s use and evaluation thereof without obtaining TFS’ prior written consent and written approval of the content of any such public announcement.
- DISCLAIMERS. PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE SOFTWARE REPRESENTS A VERSION OF UNRELEASED SOFTWARE THAT MAY CONTAIN BUGS, DEFECTS, AND ERRORS. THE SOFTWARE IS PROVIDED BY TFS ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TFS DISCLAIMS ALL WARRANTIES (WHETHER EXPRESS, IMPLIED, OR STATUTORY) WITH RESPECT TO THE TFS MATERIALS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, LOSS OF DATA, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, TFS DOES NOT WARRANT THAT THE TFS MATERIALS WILL MEET PARTICIPANT’S REQUIREMENTS OR THAT OPERATION OF THE TFS MATERIALS WILL BE ERROR FREE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL TFS OR ITS LICENSORS BE LIABLE TO PARTICIPANT OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT OR PARTICIPANT’S USE OF THE SOFTWARE, EVEN IF TFS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY, RELATED TO THIS AGREEMENT, OF TFS AND ITS LICENSORS WILL BE LIMITED TO ONE THOUSAND US DOLLARS ($1,000). THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
- Indemnification. Participant shall defend or, at its option, settle, any claim asserted against TFS by a third party: (i) arising out of any unauthorized access or use of the TFS Materials by Participant or any third party utilizing any access credentials of Participant; (ii) arising out of the use of the TFS Materials in violation or in connection with a violation of applicable law; or (iii) arising out of the operation of Participant’s business. Participant will indemnify TFS for all costs, liabilities, damages, and expenses incurred by TFS (or the amount of any settlement entered into or approved in writing by Participant) with respect to such a claim. TFS shall provide Participant with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Participant in connection with the defense or settlement of any such claim.
- Government Rights. TFS provides the TFS Materials, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The TFS Materials shall constitute “commercial” computer software. Government technical data and software rights related to the TFS Materials include only those rights customarily provided to the public as defined in the 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 this Agreement, it must negotiate with TFS 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.
- General. This Agreement constitutes the entire agreement between Participant and TFS and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to its subject matter. The parties are independent contractors, and this Agreement does not create or imply an agency, partnership, or joint venture between Participant and TFS. No modification or waiver to this Agreement shall be valid unless made in writing and signed by both Participant and TFS. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one in the same instrument. Any notice hereunder will be in writing to the address set forth below by a nationally recognized express mail service, or by email if sent to an email address designated by TFS or Participant, as applicable, to receive such notice. This Agreement will be governed by and interpreted in accordance with the laws of the State of Washington, without regard to conflicts of law principles thereof. For purposes of all claims brought under this Agreement, each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located within Seattle, Washington. Participant may not assign, sublicense or transfer to any other party or entity this Agreement or any rights or obligations hereunder without TFS’ prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing is null and void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns.