Platform License Agreement
This Platform License Agreement (the “Agreement”) is a legal document that binds users (referred to hereunder as the “User” or “Users”) to certain obligations contained herein. The User should read this Agreement carefully before accepting its terms. The User understands and agrees that the technology, system, platform, network, software, hardware, architecture, methods and processes (referred to hereunder as the "System") as described below is provided to the User under this Agreement by iSAGE WORLD (referred to hereunder as “iSAGE”, “we”, "Company" or “us”). By purchasing this software license (referred to hereunder as the the "License"), the User acknowledges and agrees that the User is of legally sufficient age, that the User has read and understood this Agreement, that the User agrees to be bound by the terms of this Agreement currently in effect and as updated by iSAGE from time to time. The iSAGE System uniquely combines immutable digital multi-blockchain technology, decentralised smart contracts, quantum technology based security and encryption and proprietary software protocols. The User desires to license such System software from iSAGE, and iSAGE desires to grant a license to the User to conduct individual transactions on the iSAGE System pursuant to the terms and conditions hereof. In consideration of the agreements contained below, the Parties hereby agree as follows:
For purposes of this Agreement, the following terms will have the meanings ascribed to them below.
1.1 “Confidential Information” means any information disclosed by one Party to the other, which,
(i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the receiving Party within thirty (30) days of such disclosure; or
(ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential.
Notwithstanding any failure to so identify them, all technology or proprietary information underlying the System and iSAGE shall be deemed Confidential Information of iSAGE, and the User Data shall be deemed Confidential Information of the User.
1.2 “Documentation” means any documentation provided by iSAGE for use with the System or Intellectual Property under this Agreement.
1.3 “Intellectual Property Rights” means all rights in, to, or arising out of:
(i) any United States of America, international or foreign patent or patent application, or any Software therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof;
(ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data;
(iii) copyrights, copyright registrations, mask works, mask works registrations, software, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and
(iv) any other similar or equivalent proprietary rights anywhere in the world.
1.4 “Licensed Materials” means the iSAGE System Intellectual Property and the associated Documentation.
1.5 “User’s Data” means the User data within the iSAGE System, expressly excluding iSAGE Intellectual Property including but not limited to Software, and Documentation.
1.6 “iSAGE System” means the technology, Intellectual Property, system, platform, network, architecture, methods and processes, software and hardware comprising iSAGE’s immutable digital multi-blockchain technology, decentralised smart contracts, quantum technology based security and encryption, proprietary software protocols and a User implemented, operated, accessed, or maintained system that implements iSAGE’s Intellectual Property in whole or in part.
1.7 “Transaction” means the processing or attempted processing of an individual entry within a single Counterparty Ledger within the iSAGE System.
1.8 “User Employees” means an employee of the User authorised to use the iSAGE system.
2.0 Responsibilities of iSAGE.
2.1 iSAGE will authorise the User to process or attempt to process a single transaction on and/or within the iSAGE System.
3.0 Responsibilities of the User.
3.1 The User will cooperate with iSAGE in setting up the User’s system within the System established by iSAGE’s Intellectual Property and Documentation.
3.2 The User will be responsible for obtaining and maintaining at the User’s expense all the necessary computer hardware, software, modems, connections to the Internet and other items required to utilise the iSAGE System.
4.0 Right to Monitor.
4.1 iSAGE will have the right to review and monitor all use of the iSAGE System to ensure compliance with the terms of this Agreement.
5.0 License Grant.
Subject to the terms and conditions of this Agreement, iSAGE grants to the User a limited, per-transaction, non-exclusive, transferable license, without the right to sublicense, to permit the User Employees to use the iSAGE Intellectual Property and Documentation.
5.2 License Restrictions.
The User shall not, and shall not permit any third party to:
(i) use the Licensed Materials except to the extent permitted in Section 5.1;
(ii) modify or create any derivative work of any part of the Licensed Materials;
(iii) permit any third parties to use the Licensed Materials; or
(iv) market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the Licensed Materials.
5.3 Copies of Documentation.
The User may make a reasonable number of copies of the Documentation solely to support the User’s use of the iSAGE System as authorised under this Agreement, provided that such copies shall include iSAGE’s copyright and any other proprietary notices that appear on the original copies of the Licensed Materials. Any copies of the Documentation made by the User are the exclusive property of iSAGE.
5.4 Reservation of Rights.
iSAGE reserves all rights to the iSAGE System, Intellectual Property and Documentation not otherwise expressly granted in this Section 5.
6.0 Payment and Taxes
6.1 License Fees.
The User agrees to deliver to iSAGE an iSAGE generated per–transaction IP license request (referred to hereunder as the “Licenses”) which contains this Agreement or includes this Agreement by reference for each individual transaction the User processes within the iSAGE System. The User will submit the License within a reasonable amount of time after the transaction and in no case more than 45 calendar days after the transaction date.
6.2 For each calendar month the User shall provide iSAGE with a written statement in a form acceptable to iSAGE. Such statements shall be certified as accurate by a duly authorised officer of the User reciting the actual number of transactions during the previous calendar month. Such statements shall be furnished to iSAGE regardless of whether any transaction occurred during the applicable Period.
6.3 The User’s obligations for the submission of the License shall survive expiration or termination of this Agreement and will continue for as long as User continues to use the iSAGE System.
The User shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on iSAGE’s net income. The User agrees to indemnify, defend, and hold iSAGE, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from the User’s failure to report or pay any such taxes, duties or assessments.
7.0 Record Inspection and Audit.
7.1 iSAGE shall have the right, upon reasonable notice, to inspect the User’s books and records and all other documents and material in the User’s possession or control with respect to the subject matter of this Agreement. iSAGE shall have free and full access thereto for such purposes and may make copies thereof.
7.2 In the event that such inspection reveals an underpayment by the User of the actual Licenses owed to iSAGE, the User shall pay the difference, plus interest calculated at the rate of one percent (1.0%) per month. If such underpayment be in excess of ten percent (10.0%) for any calendar month, the User shall also reimburse iSAGE for the cost of such inspection.
7.3 All books and records relative to the User’s obligations hereunder shall be maintained and made accessible to iSAGE for inspection for at least five years after the User’s final use of the iSAGE System.
8.1 The User's ownership.
As between the User and iSAGE, the User shall retain all right, title and interest in and to the User Data and all Intellectual Property Rights therein. Nothing in this Agreement will confer on iSAGE any right of ownership or interest in the User Data or the Intellectual Property rights therein.
8.2 iSAGE's ownership.
As between the User and iSAGE, iSAGE shall retain all right, title and interest in and to the Licensed Materials, the iSAGE System, any changes, corrections, bug fixes, enhancements, updates and other modifications thereto, and all Intellectual Property Rights therein, and as between the parties all such rights shall vest in and be assigned to iSAGE. Nothing in this Agreement will confer on the User any right of ownership or interest in the Licensed Materials, iSAGE System, iSAGE, or the Intellectual Property rights therein.
9.1 Each party shall advise the other party of any technical improvements and inventions relating to the Technology and its use. All such improvements and inventions shall become the property of iSAGE, and User agrees to execute any and all documents requested by iSAGE in order to perfect iSAGE’s right in same. If such improvement and invention is later incorporated in an improved or modified product by iSAGE, such improved product shall be subject to the submission of a License.
10.0 Technical Information.
10.1 iSAGE represents that the technical information and assistance relating to the Technology conveyed under this Agreement shall be provided with reasonable care and will, where applicable, be of the same types as currently offered by iSAGE to other Users.
11.0 The User’s Obligations.
11.1 The User represents that it has the financial resources and business operations that will enable it to use the Technology covered by this Agreement, and that it shall use its best efforts to incorporate such Technology in its iSAGE System.
11.2 The User shall fully comply with the marking provisions of the Intellectual Property laws of the applicable countries.
12.0 Limited Warranty.
12.1 Scope of Limited Warranty.
iSAGE warrants to the User that the System Documentation will provide adequate information for a person of significant technical proficiency to create, modify or operate the iSAGE System. The foregoing warranty shall not apply to performance issues of iSAGE
(i) caused by factors outside of iSAGE’s reasonable control;
(ii) that result from any actions or inactions of the User or any third parties; or
(iii) that result from the User’s data structure, operating environment or equipment.
12.2 Sole Remedy.
Should the iSAGE System not perform or function as expressly warranted herein, iSAGE shall use its commercially reasonable efforts to correct the nonconformities giving rise to such breach. The foregoing remedy is available only if the User notifies iSAGE in writing of such non-conformity within fifteen (15) days of its discovery by the User, and iSAGE’s examination of the System discloses that such non-conformity exists. The foregoing remedies shall be the User’s sole and exclusive remedies and iSAGE’s entire liability for any breach of the warranty set forth in Section 12.1.
12.3 Disclaimer of Any Other Warranties.
Except for the express, limited warranty provided in this Section 12, iSAGE makes no warranties, express, implied, statutory, or otherwise, with respect to the licensed materials, iSAGE, or any other accompanying material provided hereunder. iSAGE specifically disclaims all other warranties, express and implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose and non-infringement, those arising from a course of dealing or usage or trade, and of uninterrupted or error-free service, and all such warranties are hereby excluded to the fullest extent permitted by law. Except as expressly provided herein, the iSAGE System is provided on as is, as available basis.
The following termination rights are in addition to the termination rights which may be provided elsewhere in the Agreement:
13.1 Immediate Right of Termination.
iSAGE shall have the right to immediately terminate this Agreement in the event that User does any of the following:
(i) Files a petition in bankruptcy or is adjudicated a bankrupt or insolvent, or makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, or if User discontinues or dissolves its business or if a receiver is appointed for User or for User’s business and such receiver is not discharged within 120 days; or
(ii) Fails to commence use of the Technology within twelve months from the purchase date of this Agreement; or
(iii) Upon the commencement of use of the Technology, discontinues use for a period of at least twelve consecutive calendar months; or
(iv) Utilises any intellectual property license provided by this Agreement that would be in violation of any E.U., U.K., or U.S. economic or trade sanctions, such license shall be null and void.
13.2 Right to Terminate Upon Notice.
Either party may terminate this Agreement on [number] days’ written notice to the other party in the event of a breach of any provision of this Agreement by the other party, provided that, during the [number]-day period, the breaching party fails to cure such breach.
13.3 The User's Right to Terminate.
The User shall have the right to terminate this Agreement at any time upon three months’ written notice to iSAGE for any reason.
14.0 Post–Termination Rights.
14.1 Upon the expiration or termination of this Agreement, all rights granted to the User under this Agreement shall terminate and immediately revert to iSAGE and the User shall discontinue all use of the System.
14.2 Upon the expiration or termination of this Agreement, iSAGE may require that the User transmit to iSAGE, at no cost to iSAGE, all material relating to the System, provided, however, that the User shall be permitted to retain a full copy of all material subject to the confidentiality provisions of this Agreement.
14.3 All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all License delivery obligations accrued hereunder prior to termination or expiration shall survive such termination.
Each Party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes; shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know; and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove:
(i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party;
(ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;
(iii) is disclosed with the prior written approval of the Disclosing Party;
(iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development;
(v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or
(vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
The Receiving Party agrees that a breach of this Section 15 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
16.0 Limitation on Damages.
16.1 Exclusion of Incidental and Consequential Damages.
Except for breach of Section 5 or Section 15 and indemnification for third-party damages arising under Section 17 of this Agreement, neither Party will be liable to the other Party for any indirect, incidental, consequential, special, or exemplary damages arising out of or related to this Agreement, even if the other Party has been advised of the possibility of such damages and regardless of whether such liability sounds in contract, negligence, tort, strict liability, warranty, or otherwise.
16.2 Maximum Aggregate Liability.
Except for breach of Section 5 or Section 15 and indemnification liability arising under Section 17 of this Agreement, the maximum liability of either Party for any claims arising in connection with this agreement will not exceed the aggregate amount of payments made under this Agreement in the one-month period prior to the event giving rise to liability. The User acknowledges that the amounts payable hereunder are based in part on these limitations. The Parties agree that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
17.1 The User agrees to defend, indemnify, and hold iSAGE, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third Parties against iSAGE based on its use of the Technology including, but not limited to, actions founded on product liability.
17.2 iSAGE agrees to defend, indemnify, and hold User, and its officers, directors, agents, and employees, harmless against all costs, expenses and losses (including reasonable attorney fees and costs) incurred through claims of third Parties against User based on a breach by iSAGE of any representation or warranty made in this Agreement. This indemnity does not apply to, and iSAGE will have no obligation to the User for, any infringement or misappropriation claim that arises from
(i) modifications to the iSAGE System by anyone other than iSAGE,
(ii) modifications to the iSAGE System based upon specifications furnished by the User,
(iii) the User’s use of the iSAGE System other than as specified in this Agreement or in the applicable Documentation,
(iv) use of the iSAGE System in conjunction with third-party software, hardware or data other than that approved by iSAGE, or
(v) any combination of the foregoing.
The User shall indemnify, defend and hold iSAGE and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses to the extent they arise from any Claim based on any of the factors in the foregoing sentence, and shall give iSAGE all reasonable information and assistance regarding such claim.
17.3 This section 17 sets forth each Party's entire liability and obligation, and each Party's sole remedy for any claim of infringement or misappropriation of any intellectual property rights.
18.1 The User represents and warrants that the individual agreeing to the terms of this Agreement by purchasing a License is empowered to agree to this Agreement on behalf of the User.
Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, iSAGE may, without the consent of Users, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorised assignment shall be null and void and constitute a breach of this Agreement.
18.3 Entire Agreement.
This Agreement, and any exhibits and amendments thereto, constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may be amended by iSAGE with notification of a new version published on iSAGE’s website.
18.4 Restricted Rights.
If the User is an agency, department or entity of the United States Government (“Government”), the User agrees, that
(i) use, reproduction, release, modification or disclosure of the iSAGE System, or any part thereof, including technical data, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies,
(ii) the iSAGE System is a commercial product, which was developed at private expense, and
(iii) use of the iSAGE System by any Government agency, department or other agency of the Government is further restricted as set forth in this Agreement.
18.5 Import and Export Requirements.
The User acknowledges and agrees that the Licensed Materials are subject to export control laws and regulations. Users may not download or otherwise export or re-export the Licensed Materials or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, United States export control laws. None of the Licensed Materials or any underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into, or to a national or resident of, any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Users hereby agrees to the foregoing and warrants that Users is not located in, or under the control of, or a national or resident of any such country or on any such list.
18.6 Force Majeure.
Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.
18.7 Governing Law; Arbitration.
The User acknowledges and agrees that the User has carefully read and understood this Section 18.7 as it requires the User to arbitrate disputes with iSAGE and it limits the manner in which the User can seek relief.
The User and iSAGE agree to arbitrate any dispute arising from this Agreement, except for disputes in which either Party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. The User agrees and acknowledges that Arbitration prevents the User from suing in court or from having a jury trial. The User and iSAGE agree to notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to iSAGE shall be sent to [email protected] The User and iSAGE further agree:
(i) to attempt informal resolution prior to any demand for arbitration;
(ii) that any arbitration will occur in Melbourne, Australia and subsequent hearings;
(ii) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of arbitration in Australia set out in the Australian Arbitration Act, 2013; and
(iv) that the court in Melbourne, Australia has exclusive jurisdiction over any appeals of an arbitration award and over any suit between the Parties not subject to arbitration.
Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the Parties will be governed by this Agreement and the laws of Australia, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, the User and iSAGE will not commence against the other a class action, class arbitration or representative action or proceeding.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the date the notice is sent when sent by verified facsimile, in each case to the respective Parties. In the case of iSAGE at the address first set forth hereto. In the case of User at the address provided during license registration. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section.
18.9 Relationship of Parties.
The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorised representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
[Last updated: 1 September 2018]