Corda Community Software Support Services Agreement-Americas
Last Updated: 18 March 2022
THIS CORDA COMMUNITY EDITION SUPPORT SERVICES AGREEMENT (THIS “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN R3 LLC, A DELAWARE LIMITED LIABILITY COMPANY HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 1155 AVENUE OF THE AMERICAS, 34TH FLOOR, NEW YORK, NY 10036 (“R3”) AND THE COMPANY IDENTIFIED ON THE SOFTWARE SUPPORT SERVICES ORDER FORM (“CUSTOMER”) AS OF THE EFFECTIVE DATE SET FORTH THEREIN. BY ACCEPTING THIS AGREEMENT BY EXECUTING A SOFTWARE SUPPORT SERVICES ORDER FORM, CUSTOMER AGREES TO THE TERMS HEREIN. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE OR RECEIVE THE SOFTWARE SUPPORT SERVICES.
SOME WORDS IN THIS AGREEMENT ARE CAPITALIZED WHEN GRAMMATICAL RULES WOULD NOT REQUIRE. THESE WORDS HAVE, IN THEIR SINGULAR AND PLURAL FORMS, THE MEANINGS GIVEN TO THEM IN THE SECTION IN WHICH THEY FIRST APPEAR OR IN SCHEDULE A (DEFINITIONS).
1 Software Support Services.
1.1 Software Support Services. Subject to payment of the applicable Software Support Services Fees as set forth in the Software Support Services Order Form and subject to the terms, conditions and restrictions in this Agreement, R3 will provide support services directly to Customer for the Software in accordance with R3’s then-current support services handbook, available at: https://r3.com/support/ or such other address as is notified by R3 to Customer from time to time (“Software Support Services”). R3 may amend its support services handbook from time to time, provided any amendment shall not materially degrade the service levels offered by R3.
1.2 Eligibility. R3 shall provide Software Support Services solely in respect of the Software as made available by R3. R3 will not be obligated to provide Software Support Services if Customer or any Person other than R3 has made any Adaptations or Modifications to the Software.
1.3 Fees and Payment Terms. All fees for the Software Support Services (“Software Support Services Fees”) will be set out in the Software Support Services Order Form. Unless otherwise stated in the Software Support Services Order Form, all fees will be payable by Customer within thirty (30) calendar days of receipt of invoice.
1.4 Taxes. The amounts payable under this Agreement are exclusive of any present or future (a) sales, use, value added or other similar taxes, however designated; (b) tariffs, assessments, duties or similar taxes or charges whether imposed by domestic or foreign Governmental Authority or entities; and (c) any interest, additions to tax or penalties applicable to (a) and (b), which may be levied or imposed on the provision of the Software Support Services or Software Support Services Fees under this Agreement (collectively, “Taxes”). Customer shall pay such Taxes directly. To the extent R3 is required to collect any such Taxes, such Taxes shall be added to the amounts otherwise due under this Agreement to R3 and shall be paid by Customer and shall be separately stated on the relevant invoice to Customer. If any Applicable Law requires the deduction or withholding of Taxes from any payment by Customer, then (i) Customer shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld (each such amount, a “Withheld Tax Amount”) to the relevant Governmental Authority in accordance with Applicable Law, and (ii) the amounts payable under this Agreement shall be increased such that the total amount received by R3 from Customer, net of any Withheld Tax Amount (and net of any deduction or withholding applicable to additional sums payable under this Section 1.3 ), is equal to the amount that would have been received by R3 if no deduction or withholding had been required.
2 Ownership; Rights in Upgrades, Adaptations and Modifications. The Upgrades and other Adaptations and Modifications of or to the Software that R3 makes available (including as developed by R3 in the course of providing Software Support Services), including all Intellectual Property, title and interest therein, are owned or licensed by, and are proprietary to, R3. No title to or ownership of any Upgrades, Adaptations and Modifications or proprietary rights related to such Upgrades, Adaptations and Modifications is transferred to Customer under this Agreement. For the avoidance of doubt, all rights and licenses to the Software are as set forth in the license agreement accompanying such Software.
3.1 All confidential, non-public information one party receives from the other in its performance of this Agreement that is marked “confidential” or that the other party knows, or reasonably should know, is confidential to such party, including the software and information relating to products, pricing, Intellectual Property, business strategies (including the existence of, the terms of and its position in any dispute in relation to this Agreement), employees, officers, contractors and agents and customers (“Confidential Information”), will be held in confidence and only be used strictly in accordance with this Agreement and not for any other purposes and will not, without the express written consent of the disclosing party, be used or disclosed except to those of the receiving party’s Representatives who are bound to substantially similar obligations of confidentiality and have a need to know. Each party will be responsible and liable for the acts and omissions of its Representatives to the same extent as if performed by such party. In any case, the receiving party shall exercise at least the same standard of care to protect such information from unauthorized disclosure or use as it uses to protect its own confidential information of a similar nature, which in no event shall be less than reasonable care. For the avoidance of doubt, information which (a) is in the public domain at the time of its disclosure by disclosing party or thereafter; (b) was properly in the receiving party’s possession prior to such disclosure by disclosing party; or (c) was disclosed to receiving party by a third party who did not obtain such information, directly or indirectly, from the other party subject to any confidentiality obligation, will not be considered Confidential Information under this Agreement. Notwithstanding the confidentiality obligations under this Agreement, the receiving party is free to make disclosure of any Confidential Information in a judicial, legislative, or administrative investigation or proceeding or to a government or other regulatory agency; provided that, to the extent permitted by the circumstances, the receiving party provides to disclosing party prior written notice of the intended disclosure to enable the disclosing party the reasonable opportunity to contest or limit such disclosure (including reasonable assistance at disclosing party’s expense) or, if prior written notice is not permitted, prompt notice of such disclosure. Each party acknowledges that the disclosure of Confidential Information may cause irreparable injury to the party whose information is disclosed. Therefore, each party is, upon a disclosure or threatened disclosure of any Confidential Information, entitled to seek injunctive relief. This provision shall not in any way limit such other remedies as may be available to such party at law or in equity.
3.2 The provisions of Section 3.1 shall not be construed to prevent either party hereto or any of its respective Representatives from (a) using for the benefit of itself or any other Person any knowledge or experience that it may obtain as a result of its activities under this Agreement, including any information, general engineering concepts, knowledge or experience, in each case in intangible form, in the unaided (including not aided by means of reviewing Confidential Information in written or electronic form) memories of the persons who have had access to Confidential Information, or (b) carrying on existing businesses, seeking or making other business opportunities or investments, entering into new lines of business and/or developing or marketing new or existing products or services in any jurisdiction or territory (whether or not the same as or similar to or competitive with any business, line of business or any product or service now conducted, developed or marketed or intended in the future to be conducted, developed or marketed by R3, Customer, or any of their respective Affiliates) so long as it does not result in the unauthorized disclosure or use of Confidential Information in violation of this Agreement.
3.3 If Customer submits, orally or in writing, feedback, suggestions, or recommended changes to any of R3’s products and services, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), then Customer shall assign and hereby assigns to R3 all right, title, and interest in and to the Feedback, including any ideas, know-how, concepts, techniques, or other intellectual property rights contained therein, and agrees that R3 is free to use such Feedback, without any attribution or compensation to Customer, for any purpose whatsoever.
4 Representations and Warranties. Each party hereby expressly represents and warrants to the other that: (a) it has full power and authority to enter into and perform this Agreement; (b) the execution and delivery of this Agreement has been duly authorized; and (c) its performance under this Agreement does not breach any other agreement or legal document to which it is bound or Applicable Laws.
5 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 4 (REPRESENTATIONS AND WARRANTIES), TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) THE SOFTWARE SUPPORT SERVICES (INCLUDING ANY UPGRADES OR ADAPTATIONS AND MODIFICATIONS PROVIDED IN CONNECTION THEREWITH) ARE PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE”, AND R3 EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR PURPOSE, SYSTEM INTEGRATION, OR WARRANTIES WITH RESPECT TO THE QUALITY, AND/OR PERFORMANCE OF, THE SOFTWARE SUPPORT SERVICES (INCLUDING ANY UPGRADES OR ADAPTATIONS AND MODIFICATIONS PROVIDED IN CONNECTION THEREWITH), AND/OR THE ACCURACY OR RELIABILITY OF THE RESULTS THEREOF); AND (B) R3 DOES NOT REPRESENT, WARRANT OR PROVIDE ANY OTHER FORM OF GUARANTEE THAT THE SOFTWARE SUPPORT SERVICES (INCLUDING ANY UPGRADES OR ADAPTATIONS AND MODIFICATIONS PROVIDED IN CONNECTION THEREWITH) MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR ARE ERROR FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY R3 OR ITS REPRESENTATIVES SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE WITH RESPECT TO R3. THE SOFTWARE SUPPORT SERVICES (INCLUDING ANY UPGRADES OR ADAPTATIONS AND MODIFICATIONS PROVIDED IN CONNECTION THEREWITH) MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT TO THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. R3 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
6 LIMITATION OF LIABILITY.
6.1 R3 WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE, OR PUNITIVE DAMAGES OR LOST OR IMPUTED REVENUE OR PROFITS, OR LOST OR INACCURATE OR CORRUPTED DATA OR LOST USE, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF GOODWILL, LOSS OF OPPORTUNITY, OR LOSS OF BUSINESS EXPECTATIONS.
6.2 R3’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUIVALENT TO THE SOFTWARE SUPPORT SERVICES FEES PAID OR, IN THE CASE OF CUSTOMER, PAID AND PAYABLE, TO R3 WITH RESPECT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING ASSERTION OF THE CLAIM.
6.3 THE LIMITATIONS IN SECTIONS 6.1 AND 6.2 SHALL NOT APPLY TO (a) THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 3.2; (b) BREACH OF SECTION 3 (CONFIDENTIALITY); (c) FRAUD, BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (d) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED AT LAW.
6.4 Customer must bring any claims and causes of action within twenty-four (24) months of their being discovered. Customer agrees that (a) it will not make duplicate claims based on the same breach or the same factual occurrence, event or transaction under this Agreement and any other agreement between Customer and R3; and (b) no remedy sought under this Agreement may be duplicative or cumulative to any remedy sought under any other agreement between Customer and R3. The limitations and exclusions in this Section 6 apply to all claims or causes of action under whatever theory brought and regardless of whether a party was advised of the possibility of the claim.
7 Term; Termination.
7.1 Term. The provision of Software Support Services to Customer will commence upon the Effective Date and will continue for the Term set forth in the Software Support Services Order Form, unless earlier terminated pursuant to Section 7.2 (Termination).
7.2 Termination. A party may terminate this Agreement by giving notice in writing to other party immediately at any time by giving notice in writing to the other party if such party is in material breach of this Agreement and such breach has not been cured by such party within thirty (30) calendar days following receipt of a written notice of such breach from the non-breaching party.
7.3 Effect of Termination. If this Agreement is terminated by either party or expires pursuant to its terms, then (a) Customer must pay all outstanding amounts due to R3; (b) Customer must immediately discontinue use of the Software Support Services; and (c) each party must destroy or erase all copies and embodiments of the other party’s Confidential Information and, upon the written request of such party, provide assurances (signed by an officer) that it has done so (other than as required by Applicable Law or for automatically generated short-term back-up purposes (other than software); and provided that, with respect to such retained Confidential Information, each party will continue to be bound by the confidentiality obligations under this Agreement).
7.4 Survival. The following provisions of this Agreement shall survive the termination or expiration of this Agreement (in addition to any liability arising under this Agreement prior to such termination or expiration), and shall continue in full force and effect following such termination or expiration: Sections 1.2, 2, 3, 5, 6, 7.3, 7.4, 9, 10, 11, 12, 14, 16.
8 Assignment. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Customer may not assign or transfer (whether by operation of law or otherwise) this Agreement (in each case, in whole or in part) or any of Customer’s rights or obligations thereunder. R3 may assign this Agreement (in whole or in part) and any of R3’s rights or obligations under this Agreement, in R3’s sole discretion.
9 Dispute Resolution and Arbitration.
9.1 Mediation. If either party alleges that the other party has materially breached any of the terms of this Agreement and a mutually satisfactory resolution or cure has not been accomplished by the end of the applicable cure period, then the parties agree first to try in good faith to settle the dispute by mediation administered by the Judicial Arbitration & Mediation Services (“JAMS”) under its Commercial Rules before resorting to arbitration. This Section will not apply to a party’s confidentiality obligations under an Agreement.
(a) If the parties are unable to resolve a dispute through mediation, the dispute shall be resolved and shall be finally settled by arbitration under the JAMS Comprehensive Arbitration Rules and Procedures in force at the time such arbitration is commenced.
(b) The arbitration tribunal (the “Tribunal”) shall consist of three (3) arbitrators. The petitioning party (the “Petitioning Party”), on the one side, and the party defending the arbitration (the “Defending Party”), on the other side, shall each nominate one arbitrator within fifteen (15) calendar days after delivery of the demand for arbitration. If the Petitioning Party or the Defending Party, as the case may be, fails to nominate an arbitrator pursuant to this Section 9.2(b), upon request of any other party to the arbitration, such arbitrator shall instead be appointed by JAMS within seven (7) calendar days of receiving such request. The first two appointed arbitrators shall nominate the third arbitrator within thirty (30) calendar days of their appointment. If the first two appointed arbitrators fail to nominate a third arbitrator, then, upon request of any party to the arbitration, the third arbitrator shall be appointed by JAMS within seven (7) calendar days of receiving such request. The third arbitrator, however appointed, shall serve as the chairman of the Tribunal.
(c) All disputes concerning or relating to arbitrability of disputes under an Agreement or the jurisdiction of the arbitrators shall be resolved by the arbitrators. The site of arbitration shall be New York County, New York. All arbitration proceedings shall be confidential.
(d) The award shall be rendered in writing and shall set forth in reasonable detail the facts of the dispute and the reasons for the Tribunal’s decision. In the award, the Tribunal shall apportion the costs and expenses of the arbitration. The award rendered in any arbitration commenced under an Agreement shall be final and conclusive and binding upon the parties to the dispute on the date it is rendered. The parties undertake to implement any award rendered by the Tribunal and judgment upon the award may be entered in any court of competent jurisdiction.
(e) Notwithstanding anything to the contrary herein, the arbitration provisions specified herein, and any arbitration conducted under an Agreement, shall be governed exclusively by the Federal Arbitration Act, Title 9 United States Code, to the exclusion of any state or municipal law of
9.3 Exceptions. Sections 9.1 and 9.2 shall not prevent either party from commencing a civil action prior to or during the dispute resolution process described therein to (a) issue an injunction, attachment, or other provisional order in aid of the dispute resolution process or to preserve the status quo; (b) avoid the expiration of any applicable limitations period; (c) exercise any self-help rights or any other rights or remedies available to it by contract or applicable law; (d) prevent or enjoin the breach or alleged breach of confidentiality obligations; or (e) to enforce any arbitral award.
10 Governing Law and Venue. This Agreement will be interpreted, construed, and governed by the laws of the State of New York, United States. Customer agrees that the state or federal courts located in New York County, New York, shall have sole and exclusive jurisdiction over any disputes other than those that are subject to binding arbitration pursuant to Section 9.2 (Arbitration) or any application for equitable relief. Any claim shall be brought only in federal or state courts located in New York County, New York, and each party expressly waives any claim that the jurisdiction of such court with respect to personal jurisdiction is improper or that the venue is inconvenient or improper. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO SUCH CONTROVERSIES. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. The prevailing party in any dispute is entitled to the recovery of reasonable legal fees and expenses.
11 Miscellaneous. Headings and captions are used for convenience of reference only. Unless otherwise stated, references to monetary amounts are in USD. This Agreement may be signed in separate, identical counterparts (including counterparts delivered by electronic transmission) deemed to be one instrument. All notices must be sent by certified mail or reputable overnight courier to the address specified for each party and deemed given one (1) business day after sending, to R3: Attention: Chief Legal Officer and to Customer at the address set out on the Software Support Services Order Form. Except for Customer’s obligations to pay fees and expenses pursuant to this Agreement, neither party will be liable for failure or delay in the performance of its obligations under this Agreement if such performance has been made impracticable by the occurrence of a contingency not reasonably within the control and without the fault of a party, including compliance with any applicable foreign or domestic governmental regulation or order, severe weather, acts of God, epidemics, accidents, strike or labor troubles (in each case other than a party’s own), failure of equipment, riots, wars, acts of terrorism, fire, shortages of materials, rationing, acts of public enemies, blockade, embargo, power failure, internet or other service disruptions involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks (each, a “Force Majeure Event”). The parties shall use reasonable efforts to negotiate in good faith to substitute any invalid, illegal or unenforceable provision with a valid, legal or enforceable provision which achieves to the greatest extent enforceable the original intent (and commercial position) of the parties as would have been achieved by the original provision. Waiver of a breach is not waiver of other or later breaches. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. Nothing in this Agreement is intended to create an agency, partnership, joint venture, or franchise between the parties and neither party has the authority to act in the name or on behalf of or otherwise to bind the other or to make representations on behalf of the other party or its products or services. In performing its obligations under this Agreement, each party is acting as an independent contractor of the other and is solely responsible for the supervision, daily direction, and control of its own employees and for the payment of their salaries and benefits and related compensation. Each of the parties shall be fully responsible for its Representatives compliance with this Agreement. References to days are references to calendar days unless otherwise specified. Except as set forth herein, there are no third party beneficiaries of this Agreement.
12 Availability of Equitable Relief. Each party recognizes that the breach of the confidentiality provisions set forth in Section 3 (Confidentiality) could result in irreparable damage and harm to another party hereto (and its respective Affiliates) and such Person may be without an adequate remedy at law in the event of any such breach. Therefore, each party agrees that, if any of the foregoing provisions is breached or is threatened to be breached, each party and/or its Affiliates may: (a) seek to obtain specific performance, (b) seek to enjoin any Person that has breached, or threatens to breach, any provision of Section 3 (Confidentiality) from engaging in any activity restricted by such provisions, and (c) pursue any one or more of the foregoing or any other remedy available to it under Applicable Laws. A Person seeking or obtaining any such relief shall not be precluded from obtaining any other relief to which that Person may be entitled.
13 Press Releases and Public Announcements. R3 and its Affiliates will have the right to use Customer’s logo and name in connection with any press release, advertising or public announcement, subject to compliance with directions of Customer regarding such logos and trademarks.
14 Export Controls and Sanctions. Customer acknowledges that software delivered to Customer under this Agreement may be subject to export controls administered by the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) (including the S. Export Administration Regulations (EAR)) and trade and economic sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) (collectively, “U.S. Export Controls and Sanctions”), and E.U. Regulation (EC) No 428/2009 (as amended) (Regulation 428/2009) and other U.K., U.S. and foreign export and import Laws (“Other Applicable Export Laws”). Customer agrees that Upgrades, Adaptations and Modifications may not be exported, re-exported or otherwise retransferred except in accordance with U.S. Export Controls and Sanctions, Regulation 428/2009 and Other Applicable Export Laws, including (a) absent appropriate authorization from the U.S. government: (i) into (or to a Person organized under the laws of, ordinarily resident in, or located in) Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country that is the target of a U.S. or U.K. trade embargo; (ii) to any Person on the Specially Designated Nationals and Blocked Persons (SDN) List administered by OFAC, or the Entity List or Denied Persons List administered by BIS, or to an entity 50% or more owned, directly or indirectly, by one or more Persons on the SDN List; or (iii) for any purpose or end-use or to any Person that is otherwise prohibited by U.S. Export Controls and Sanctions, or (b) absent appropriate authorization from the U.K. or other appropriate government: (i) into any country subject to European Union or U.K. sanctions or restrictive measures (including to a Person which is owned or controlled by one or more parties subject to European Union or U.K. economic sanctions/restrictive measures); (ii) either directly or indirectly to any Person listed as a party subject to European Union or U.K. economic sanctions/restrictive measures; or (iii) for any purpose or end-use that is prohibited by Regulation 428/2009 or Other Applicable Export Laws.
15 Data Protection. The parties agree to comply with the data protection provisions set forth in the Data Processing Addendum.
16 Entire Agreement. This Agreement together with its Schedule and the Software Support Services Order Form, and any addenda or other terms incorporated into this Agreement by reference, is the entire agreement between the parties with respect to the applicable subject matters under them and supersede all previous or contemporaneous written and verbal agreements or proposals relating to the same subject matter and cannot be modified except by written agreement executed by an authorized Representative of each party referencing the specific provisions modified. Purchase orders or similar documents issued by Customer or Customer’s agents are void and of no effect. If Customer’s procurement processes require use of an internal purchase order neither it nor its terms will supersede, replace, or amend this Agreement.
For purposes of this Agreement, including the Exhibits, the following definitions apply to the extent applicable.
“Adaptations and Modifications” mean, with respect to the Software, all derivative works thereof, developments therefrom or improvements, enhancements or other alterations thereto.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by, or under direct or indirect common Control with, such Person.
“Agreement” has the meaning set forth in the preamble.
“Applicable Law” means, with respect to any Person in any jurisdiction, the laws, regulations, orders, rules, rulings, notices, judicial decisions, directions, requirements, requests, guidelines and/or codes issued by a Governmental Authority or regulatory or quasi-governmental authority, court or tribunal affecting or relating to any matter including but not limited to any matter covered by this Agreement and being in force during the Term of this Agreement.
“Confidential Information” has the meaning set forth in Section 3 (Confidentiality).
“Control” means (a) the ownership, directly or indirectly, of fifty percent (50%) or more of the voting equity share capital of a specific Person or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” will have correlative meanings.
“Corda Community Edition” means the Publicly Available Software version of R3’s software product “Corda”, located at https://github.com/corda/corda, and which may be moved to another URL from time to time.
“Corda Node” means a single instance of the Software run by each of Customer.
“Corda Node Host” means an entity that hosts a Corda Node for the benefit of a third party.
“Customer” has the meaning set forth in the preamble.
“Data Processing Addendum” means a document available at: https://r3.com/wp-content/uploads/2021/10/R3_Data-Protection-Addendum.pdf, as amended from time to time, which is incorporated by reference and forms part of this Agreement.
“Defending Party” has the meaning set forth in Section 9.2 (Arbitration).
“Documentation” means all design, operating and user documentation relating to Software that is provided by R3 via https://github.com/corda/corda or such other address as is notified by R3 to Customer from time to time.
“Effective Date” has the meaning set forth in the Software Support Services Order Form.
“Feedback” has the meaning set forth in Section 3.4.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any supra-national, governmental, federal, state, provincial, local governmental or municipal entity or authority and any self-regulatory organization or quasi- governmental organization exercising executive, legislative, judicial, regulatory or administrative functions or pertaining to government (including, in each case, any branch, department or official thereof).
“Initial Term” has the meaning set forth in the Software Support Services Order Form.
“Intellectual Property” means any intellectual property or similar proprietary rights in any jurisdiction, whether registered or unregistered, including such rights in and to: (a) trademarks and pending trademark applications, trade dress, service marks, certification marks, logos, domain names, uniform resource locators, trade names and fictional business names, together with all translations, adaptations, derivations and combinations and like intellectual property rights, together with all goodwill associated with the foregoing, (b) issued patents and pending patent applications, and any and all divisions, continuations, continuations-in-part, reissues, renewals, provisionals, continuing patent applications, reexaminations, and extensions thereof, any counterparts claiming priority therefrom, utility models, patents of importation/confirmation, certificates of invention, certificates of registration and like rights, inventions, invention disclosures, discoveries and improvements, whether or not patentable, (c) works of authorship, all copyrightable works (including software) and all copyrights including all applications, registrations and renewals thereof, and all rights corresponding thereto, (d) trade secrets (including those trade secrets defined in the U.S. Uniform Trade Secrets Act promulgated by the National Conference of Commissioners on Uniform State Laws in 1979, as amended and under corresponding foreign statutory and common law), business, technical and know-how information, non-public information, and confidential information and rights to limit the use or disclosure thereof by any Person, (e) mask works and (f) moral rights.
“JAMS” has the meaning set forth in Section 9.2 (Arbitration).
“New Version” means a version of the Software containing Adaptations and Modifications that constitute a significant change or upgrade in Software’s functionality.
“Other Applicable Export Laws” has the meaning set forth in Section 13 (Export Controls and Sanctions).
“Patch” means an Adaptation and Modification to the Software intended to correct bugs, problems or errors, or to remove or protect against harmful code, computer viruses, worms, time bombs, logic bombs, Trojan horses, salamis, trap doors, backdoors, undocumented passwords, protect codes or other malicious computer instructions, or any devices or techniques that can, or are designed to, threaten, assault, vandalize, subvert, disrupt, damage, copy, misappropriate, disable or shutdown an IT system, a software program, or any component thereof, including its security or user data; including bug fixes, patches, hot fixes, and other revisions, so that the Software operates without reproducible failure and functions in material conformity with the specifications contained in the Documentation.
“Person” means a natural person, partnership, domestic or foreign limited partnership, domestic or foreign limited liability company, trust, estate, association, corporation, or any other legal entity, or Governmental Authority.
“Petitioning Party” has the meaning set forth in Section 9.2 (Arbitration).
“Publicly Available Software” means any software that is distributed as free software, open source software or similar licensing or distribution models.
“R3” has the meaning set forth in the preamble.
“Renewal Term” has the meaning set forth in the Software Support Services Order Form.
“Representatives” means, with respect to any Person, any such Person’s Affiliates, its and their respective managers, officers, directors, employees, professional advisors, Corda Node Hosts, third party agents, consultants, auditors, and other independent contractors performing services for Customer and/or R3 (as applicable).
“Software” means the complied version of Corda Community Edition made available by R3 at https://docs.r3.com/en/release-notes/downloads.html, and which may be moved to another URL from time to time, and which is meets the eligibility criteria set out in Section 1.2 (Eligibility) and the then-current support services handbook, available at: https://www.r3.com/support/ or such other address as is notified by R3 to Customer from time to time.
“Software Support Services” has the meaning set forth in Section 1 (Software Support Services).
“Software Support Services Fees” has the meaning set forth in Section 1.2 (Fees and Payment Terms).
“Software Support Services Order Form” is the order form for the Software Support Services entered into by and between Customer and R3 which references this Agreement.
“Taxes” has the meaning set forth in Section 1.3 (Taxes).
“Term” has the meaning set forth in the Software Support Services Order Form.
“Tribunal” has the meaning set forth in Section 9.2 (Arbitration).
“Upgrades” means improvements and/or fixes to the Software comprising of New Versions or Patches that R3 makes available for general distribution from time-to-time at no additional charge to its customers who have paid their License Fees.
“U.S. Export Controls and Sanctions” has the meaning set forth in Section 13 (Export Controls and Sanctions).
“Withheld Tax Amount” has the meaning set forth in Section 1.3. (Taxes).