These Standard Terms & Conditions (this “Agreement”) is made by and between Chaos Labs Inc., a Delaware corporation (“Chaos Labs” or “Chaos”), and the individual or entity listed in the Order Form that links to this Agreement (“Client”) and is effective as of earlier of (i) the first date Client accesses the Services (as defined below); or (ii) the date on which Parties execute an Order Form (the “Effective Date”). If Client is a decentralized autonomous organization or similar decentralized entity, whether registered or unregistered in any jurisdiction (“DAO”), references to “Client” in this Agreement shall include all members of the DAO, as membership is defined by its governing charter or other documents. Chaos Labs and Client may each be individually referred to as a “Party” and collectively as “Parties.”
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS CLIENT’S USE OF THE SERVICES. IF CLIENT DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLIENT MUST NOT ACCEPT THIS AGREEMENT OR ACCESS OR USE THE SERVICES.
IF CLIENT IS A DAO, CLIENT ACKNOWLEDGES AND AGREES THAT BY ACCEPTING THESE TERMS, IT BINDS ITSELF (INCLUDING ITS MEMBERS) TO THIS AGREEMENT, AND THE DAO AND ALL SUCH MEMBERS OF THE DAO SHALL BE JOINTLY AND SEVERALLY LIABLE FOR CLIENT’S OBLIGATIONS HEREUNDER.
CLIENT ACCEPTS THIS AGREEMENT BY (i) APPROVING ANY ORDER FORM LINKING TO THIS AGREEMENT, (ii) ACCESSING OR USING THE SERVICES IN ANY WAY, OR (iii) CLICKING ON THE “I ACCEPT” (OR SIMILAR) BUTTON WHEN COMPLETING REGISTRATION OR SIGNING UP FOR THE SERVICE. CLIENT REPRESENTS THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT, AND CLIENT HAS THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT.
- Scope of Services.
- Services. Subject to Client’s ongoing compliance with this Agreement, Chaos Labs shall perform certain services from time to time, as more particularly described in this Agreement and one or more Order Forms (as defined below) (the “Services”). Chaos Labs will only provide the Services after the Parties have executed an order form or other mutually agreed binding proposal with respect to the Services that links to or incorporates this Agreement (“Order Form”).
- Order Forms. Each Order Form shall: (a) identify the applicable project and describe the Services; (b) specify the Fees (as defined in Section 3.1) and the payment schedule which Client will pay for the Services; (c) be signed by both Parties (or in the case of a DAO, be approved by both Parties via smart contract) before commencing work on any project; (d) link to and be governed by the terms of this Agreement and made a part hereof; and (e) automatically renew for consecutive twelve (12) month terms unless either Party notifies the other Party in writing at least ninety (90) days before the expiration of the then-current Order Form term.
- Modification of Services. The Parties agree that an Order Form may be modified from time to time upon written agreement of the Parties (a “Modification”), and each Party agrees to comply with its obligations as set forth in any such Modification.
- Service Standards. The Services will be performed consistent with professional and industry standards, by individuals with the requisite training, background, experience, technical knowledge, and skills to perform the Services. All employees and consultants of Chaos Labs (the “Chaos Labs Personnel”) used by Chaos Labs in the performance of the Services will be bound by written agreements with Chaos Labs under which (a) Chaos Labs owns or is assigned exclusive ownership of all Deliverables (as defined below) and related work product, including all Intellectual Property Rights (as defined below) therein, and Chaos Labs Personnel has waived all moral rights that Chaos Labs Personnel may now or in the future have in the Deliverables and related work product and (b) Chaos Labs Personnel agrees to a limitation on the use and disclosure of Confidential Information no less restrictive than the terms outlined in Section 4 herein.
- Independent Contractor. The Parties agree that Chaos Labs is an independent contractor of Client in performing the Services. Nothing herein shall imply a partnership, joint venture, or principal and agent relationship between the Parties. Neither Party shall have any right, power, or authority to create any obligation, express or implied, on behalf of the other.
- First Look. During the Term (as defined below), Client agrees that Client will not contract with or otherwise receive services from any risk service provider or other provider of related services other than Chaos, including without limitation Gauntlet, Block Analitica, Risk DAO, and OpenBlock, without first giving Chaos Labs notice of such potential agreement and an opportunity to negotiate in good faith to provide such services (the “First Look Covenant”). Client acknowledges and agrees that the First Look Covenant is a material inducement to Chaos Labs’ decision to enter into this Agreement on the financial terms set forth hereunder and that any breach by Client of the First Look Covenant shall be a material breach of this Agreement.
- Restrictive Covenant. If the Services include the provision of any oracle product, Client shall officially endorse such oracle product(s) as the primary oracle used by Client and promoted by Client as reasonably requested by Chaos Labs. During the Term, Client shall not, and shall not cause or permit any third party to, endorse, promote, or officially publish or declare support for any other oracle products provided by third parties, whether or not Client chooses to implement such oracle products. Client agrees that any breach by Client of this Section 1.7 will constitute a material breach of this Agreement.
- Term and Termination.
- Term. This Agreement shall commence on the Effective Date. It shall remain in effect for as long as Chaos Labs is providing Services to Client under any Order Form, and shall automatically expire if there are no outstanding Order Forms, unless earlier terminated in accordance with the termination provisions set forth herein (such period, the “Term”). The Term of this Agreement may be extended by mutual written consent of the Parties.
- Termination for Breach or Insolvency. Either Party may terminate this Agreement or any Order Form:
- at any time if the other Party is in material breach of this Agreement or such Order Form, and such breach has not (i) been cured in all material respects or (ii) waived in writing by the non-breaching Party, in each case within ten (10) calendar days after written notice; or
- immediately upon written notice, if the other Party makes any assignment for the benefit of creditors or a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of any or all of the other Party’s property, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within sixty (60) calendar days or the other Party becomes insolvent or, without a successor, dissolves, liquidates, or otherwise fails to operate in the ordinary course.
- Effect of Termination. In the event of early termination of this Agreement or any applicable Order Form, immediately upon termination, Client shall pay Chaos Labs all accrued but unpaid Fees for Services rendered up to the date of termination, and Client shall reimburse Chaos Labs for reasonable expenses incurred in accordance with the provisions of Section 3.2. Upon the expiration or termination of this Agreement for any reason, subject to Client’s payment of any Fees, Chaos Labs will promptly deliver to Client all Deliverables and related work products, including all work in progress on any such Deliverable or related work product not previously delivered to Client, if any.
- Survival. The expiration or termination of this Agreement for any reason shall not terminate the obligations or liabilities of the Parties under Sections 2.3, 2.4, 3, and 4 through 9, each of which shall survive any such expiration or termination.
- Fees and Payment.
- Fees. As consideration for the performance of the Services, Client shall pay Chaos Labs the fees outlined in each Order Form (the “Fees”).
- Expense Reimbursement. Client shall reimburse Chaos Labs for any reasonable, preapproved expenses incurred by Chaos Labs in connection with performing the Services.
- Payment Terms. Unless otherwise agreed in an applicable Order Form, Client shall pay all amounts due within thirty (30) days of the date of such invoice, except for any amounts that Client disputes in good faith. The Parties will use their respective commercially reasonable efforts to resolve any such payment disputes promptly. Late payments shall accrue interest at one and a half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Chaos Labs shall have the right to recover reasonable and documented expenses, including reasonable and documented attorneys’ fees, in any wholly-successful action to collect unpaid Fees due under this Agreement.
- Payment Currency. Client shall pay all Fees in the currency set forth in each Order Form. If Client pays Chaos using Client’s proprietary tokens (“Tokens”), the price per Token for each Token payment will be calculated using the 7-day TWAP of such Tokens (calculated based on public trading data on coingecko.com) prior to each payment due date (each such date, the “Token Payment Date”).
- Taxes. All Fees due and other charges stated herein are exclusive of and do not include any sales, use, value-added, or other taxes, charges, and/or duties, which shall be Client’s responsibility. Taxes based on Chaos Labs’ payroll, net income, gross receipts, or other similar taxes, charges, and/or duties imposed on Chaos Labs shall be Chaos Labs’ responsibility.
- Gas Fees. During the Term, Client agrees that Client will be responsible for covering all gas fees associated with the performance of the Services (the “Gas Fees”). Client acknowledges and agrees that paying the Gas Fees is a dependency for the continuous provision of the Services.
- Confidentiality.
- Confidential Information. “Confidential Information” means any information, including, but not limited to, inventions, know-how, engineering, business, technical, and financial information disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), either directly or indirectly, in writing, orally, or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant, and equipment), which is designated as “Confidential,” “Proprietary,” or some similar designation and all other information which is not in the public domain or which by its nature is proprietary and confidential, whether or not subject to patent, trademark, trade secret, copyright, or other statutory protection and whether or not such information has been marked as “Confidential” or “Proprietary” or is in written, oral, or visual form. Confidential Information may include information disclosed to a Disclosing Party by third parties. Confidential Information shall not, however, include any information which:
- was publicly known and made generally available in the public domain before the time of disclosure by the Disclosing Party;
- becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party;
- is already rightfully in possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records immediately before the disclosure;
- is rightfully obtained by the Receiving Party from a third party without a breach of such third party’s confidentiality obligations; or
- is independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.
- Non-use and Non-disclosure. Each Party agrees not to use any Confidential Information of the other Party for any purpose except to perform its obligations or exercise its rights under this Agreement (the “Permitted Uses”). Each Party agrees not to disclose any Confidential Information of the other Party to anyone, including third parties or such Party’s employees, directors, and professional services providers, except to those employees, directors, and professional service providers of the Receiving Party who are required to have the information to perform this Agreement or have a bona fide need to access such Confidential Information to fulfil their obligations to the Receiving Party, and in each case, only to those employees, directors, and professional service providers who are informed of the confidential nature of the Confidential Information and agree to hold such information in confidence and not to use such Confidential Information other than in connection with the Permitted Uses. Neither Party shall directly or indirectly reverse engineer, disassemble, or decompile any prototypes, software, or tangible objects that embody the other Party’s Confidential Information and provided to the Party hereunder. The Receiving Party shall be liable for any breaches of this Section 4 by any of its employees, directors, and professional service providers.
- Maintenance of Confidentiality. Each Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the preceding, each Party shall take at least those measures that it takes to protect its own confidential information, and in no circumstance less than reasonable care, and shall ensure that its employees who have access to Confidential Information of the other Party have signed a non-use and non-disclosure agreement no less restrictive than the terms hereof, before any disclosure of Confidential Information to such employees. Except as otherwise required in the ordinary course of business for the provision of the Services under this Agreement, neither Party shall make any copies of the Confidential Information of the other Party unless the same are previously approved in writing by the other Party. Each Party shall reproduce the other Party’s proprietary rights notices on any such approved copies in the same manner in which such notices were outlined in or on the original.
- Compelled Disclosure. Nothing in this Agreement will restrict a Party from disclosing the other Party’s Confidential Information to the extent required by any order, subpoena, law, statute, or regulation, provided that the Party required to make such a disclosure uses reasonable efforts to (a) give the other Party reasonable advance notice of such required disclosure to enable the other Party to prevent or limit such disclosure (unless prohibited by order, subpoena, law, statute, or regulation) and (b) ensure that any Confidential Information so disclosed is afforded confidential treatment; provided, further, that such disclosure is limited to only that portion of the Confidential Information, that in the opinion of legal counsel, is legally required to be disclosed.
- Return of Confidential Information. Upon termination or expiration of this Agreement or written request of the Disclosing Party, each Receiving Party shall (a) promptly return to the other Party or (at the Receiving Party’s election) destroy all documents and other materials representing the Disclosing Party’s Confidential Information and all copies thereof, whether maintained in tangible, electronic, or another form (including permanently erasing any portions thereof from computers and systems) in the Receiving Party’s possession or control; and (b) provide the Disclosing Party with written certification of its compliance with the terms of this Section.
- Confidential Information. “Confidential Information” means any information, including, but not limited to, inventions, know-how, engineering, business, technical, and financial information disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), either directly or indirectly, in writing, orally, or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant, and equipment), which is designated as “Confidential,” “Proprietary,” or some similar designation and all other information which is not in the public domain or which by its nature is proprietary and confidential, whether or not subject to patent, trademark, trade secret, copyright, or other statutory protection and whether or not such information has been marked as “Confidential” or “Proprietary” or is in written, oral, or visual form. Confidential Information may include information disclosed to a Disclosing Party by third parties. Confidential Information shall not, however, include any information which:
- Deliverables; Pre-Existing Materials; Intellectual Property.
- Deliverables. Subject to Client’s payment of any Fees, any work product specifically created by Chaos Labs for Client under an Order Form and identified in such Order Form, excluding any Chaos Labs’ Pre-Existing Materials (defined below) incorporated therein (“Deliverables”) shall be Client’s sole and exclusive property, and Chaos Labs shall assign and hereby does assign to Client all right, title and interest in and to such Deliverables. Chaos Labs hereby waives all moral rights it may now or in the future have in the Deliverables and related work products. Chaos Labs agrees, at Client’s expense, to do all reasonable things and execute all documents that are reasonably requested by Client to ensure Client’s ownership of the Deliverables and waiver of Chaos Labs’ moral rights, including but not limited to providing Client with written assignments of all rights to Client and any other documents required to enable Client to document rights to and/or register patents, copyrights, trademarks, industrial designs, and such other protections as Client considers advisable. Chaos Labs shall have (and Client hereby grants Chaos Labs) the perpetual, irrevocable, worldwide, royalty-free right and license to use the Deliverables solely on a de-identified basis, for any lawful purpose; provided that such use will not identify, and could not be used to identify, Client.
- Pre-Existing Materials. The term “Pre-Existing Materials” means all documents, data, know-how, methodologies, software, and other materials provided by or used by a Party before the Effective Date of this Agreement, or which are developed by a Party and do not use or incorporate any of the other Party’s Confidential Information, including any methods or techniques of general applicability to a Party’s business or services developed by such Party. Notwithstanding anything to the contrary herein, each Party (or its licensors, as applicable) shall remain the sole and exclusive owners of all rights, titles, and interests in and to their respective Pre-Existing Materials, including all Intellectual Property Rights therein. Chaos Labs hereby grants Client a limited, non-exclusive, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable and non-sublicensable (except as incorporated in the Deliverables) license to use any Pre-Existing Materials that are incorporated or embedded in the Deliverables, solely as incorporated in the Deliverables or as reasonably necessary to use the Deliverables as contemplated hereunder and solely for Client’s internal purposes. Client hereby grants Chaos Labs a limited, revocable, non-exclusive, fully paid-up, royalty-free, non-transferable, non-sublicensable license during the Term to use Client’s Pre-Existing Materials solely to provide the Services to Client. All other rights in and to a Party’s Pre-Existing Materials are expressly reserved by such Party.
- Intellectual Property Rights.
- The term “Intellectual Property Rights” means the exclusive rights held by the owner of a copyright, patent, trademark, trade secret or other intellectual property right in any applicable jurisdiction, including (a) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify, and create derivative works of copyrighted subject matter; (b) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods, (c) the rights to use and display any marks in association with businesses, products, or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (d) the rights to apply for any of the preceding rights. Intellectual Property Rights also include any rights associated with particular information granted by law that give the owner, independent of contract, exclusive authority to control the use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.
- Except as expressly provided herein concerning the Deliverables provided to Client under an Order Form, all Intellectual Property Rights in all of Chaos Labs’ Pre-Existing Materials, all derivative works thereof, and all developments made, conceived, created, discovered, invented, or reduced to practice by Chaos Labs which are not the Deliverables shall remain the sole and absolute property of Chaos Labs and Chaos Labs retains all Intellectual Property Rights therein.
- Except as expressly provided herein concerning Chaos Labs’ Pre-Existing Materials incorporated or embedded in the Deliverables, all Intellectual Property Rights in the Deliverables shall be and remain the sole and absolute property of Client and Client retains all Intellectual Property Rights and all moral rights therein.
- Feedback. From time to time, Client may elect to provide Chaos with suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Services (“Feedback”). Client agrees that Chaos may use all such Feedback without restriction, in any manner and for any purpose, on a perpetual, irrevocable basis, without compensation to Client.
- Independent Development. Client acknowledges that Chaos Labs may perform services similar to the Services and create original works similar to the Deliverables for third parties. Client agrees that, so long as such original works do not embody and are not created using any of Client’s Confidential Information, Chaos Labs will not be prevented from independently creating such works or performing such services for the benefit of third parties.
- Representations, Warranties, Covenants.
- Each Party represents and warrants to the other Party that:
- Power and Authority; Execution; and Delivery. It has the power, authority, and legal right to execute and deliver this Agreement and perform its obligations.
- No Approvals. No consent or authorization of, filing with, notice to, or another act by, or in respect of, any governmental authority or any other person is required for it to execute, deliver, or perform any of its obligations under this Agreement.
- No Violations. The execution and delivery of this Agreement and the consummation of the transactions contemplated now do not violate any applicable law or constitute a default under any agreement by which such Party may be bound.
- Enforceability. This Agreement represents a valid, legal, and binding obligation of the Party, enforceable against it by the terms of this Agreement, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles.
- Client Representations and Warranties.
- Non-Solicitation. During the Term and for one (1) year thereafter, Client will not directly or indirectly solicit the services of any employee or consultant of Chaos Labs for such Client’s benefit or for the benefit of any other person or entity, provided, that the preceding restriction will not prohibit general advertisements for employment or contracts not specifically directed towards employees or consultants of Chaos Labs.
- Compliance with Law. It shall comply with all laws applicable to the performance of its obligations under this Agreement and each Order Form.
- Binding Nature. If Client is a DAO, Client hereby represents and warrants to Chaos Labs:
- Client has the power and authority to bind all members of the DAO as defined by its governing charter or other documents (collectively “DAO Members”);
- All DAO Members shall be jointly and severally liable to Chaos Labs for all of Client’s obligations under this Agreement.
- If Client pays the Fees with Tokens, Client hereby represents and warrants to Chaos Labs as of the applicable Token Payment Date:
- Client is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, and has all requisite corporate power and authority to carry on its business as now conducted and as presently proposed to be conducted. The Client is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect.
- All corporate action required to be taken by Client in order to authorize the Client to issue the Tokens. All action on the part of the officers of Client necessary for the issuance and delivery of the Tokens has been taken or will be taken prior to the Token Payment Date.
- Upon delivery of the Tokens, Client shall deliver, and Chaos shall have, good and marketable title to the Tokens, free and clear of all liens, claims, charges and encumbrances of any kind whatsoever. The Tokens issuable hereunder are fully vested and are not subject to any restrictions on transfer that may otherwise bind Chaos.
- The representations and warranties of the Client contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement.
- Disclaimer. Chaos Labs shall use commercially reasonable efforts to perform the Services and comply with all applicable laws and regulations in the provision of the Services. Notwithstanding the foregoing, and except as otherwise expressly set forth herein, Chaos Labs makes no (and disclaims all) representations or warranties with respect to the Services and any Deliverables.
TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, THE DELIVERABLES, AND ANY AND ALL OTHER PRODUCTS AND SERVICES PROVIDED BY CHAOS LABS HEREUNDER (COLLECTIVELY, THE “CHAOS LABS PRODUCTS”), ARE PROVIDED SOLELY “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS, AND CLIENT’S USE OF OR RELIANCE ON CHAOS LABS PRODUCTS IS AT CLIENT’S SOLE RISK. CHAOS LABS DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. CHAOS LABS DOES NOT WARRANT CHAOS LABS PRODUCTS SHALL BE ERROR-FREE, UNINTERRUPTED, OR VIRUS-FREE. FURTHERMORE, CHAOS LABS DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES CONCERNING THE ACCURACY, AVAILABILITY, OR ACCESSIBILITY OF CHAOS LABS PRODUCTS AND ANY WARRANTY THAT CHAOS LABS PRODUCTS WILL RESULT IN PROFITS AND WILL NOT RESULT IN LOSSES. ANY PAST PROFIT AND LOSS RESULTS DERIVED FROM THE USE OF CHAOS LABS PRODUCTS IS NO ASSURANCE OR WARRANTY THAT THEY WILL YIELD SIMILAR RESULTS IN THE FUTURE, AND CHAOS LABS DISCLAIMS ALL WARRANTIES AND MAKES NO GUARANTEES OR PROMISES FOR ANY RESULTS IN CONNECTION WITH THE USE OF CHAOS LABS PRODUCTS BY CLIENT OR ANY THIRD PARTY. CHAOS LABS MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY USE OF CHAOS LABS PRODUCTS BY CLIENT WILL NOT VIOLATE ANY LAWS. CLIENT MAY HAVE ADDITIONAL RIGHTS UNDER APPLICABLE LAW.
- Each Party represents and warrants to the other Party that:
- Limitation of Liability.
- IN NO EVENT WILL CHAOS LABS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY, OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES, AND LOSS OF DATA), COSTS, EXPENSES, AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- CHAOS LABS’ TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER (EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS) WILL BE LIMITED TO THE AMOUNT OF FEES CHAOS LABS HAS RECEIVED FROM CLIENT IN THE SIX (6) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM (THE “LIABILITY CAP”).
- Indemnity. Client will indemnify and hold Chaos harmless from and against any lawsuit or proceeding brought by a third party and any damages and costs (including reasonable attorneys’ fees) arising from such lawsuit or proceeding to the extent arising out of Client’s breach or alleged breach of this Agreement.
- Notices. All notices or other communications required to be given hereunder by any of the Parties shall, in every case, be in writing. They shall be deemed properly served if and when (a) delivered by hand, (b) transmitted by facsimile, email, or other means of electronic transmission, (c) delivered by Federal Express or another express overnight delivery service, or (d) sent by registered or certified mail, return receipt requested, to the Parties at the addresses set forth in each Order Form (or as may be amended by either Party simply by providing written notice of the change to the other Party).
- Miscellaneous.
- Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the obligation to pay Fees for previously completed Deliverables, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, pandemics or public health emergencies, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. Each Party shall use reasonable efforts to notify the other Party of such an event within five (5) days of its occurrence.
- Assignment. Neither Party may assign or transfer any right or obligation under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, assignment is permitted in the event of a Party’s merger, acquisition, consolidation, reorganization, change of control, or the sale of all or substantially all of said Party’s equity or assets not involving a competitor of Chaos Labs. Except for the preceding, any assignment without the other Party’s written consent shall be null and void. This Agreement shall be binding upon and inure to the benefit of the successors, assigns, and legal representatives of the Parties.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.
- Expenses. Except as outlined in Section 3.2 above, each Party hereto shall pay its own expenses incurred (including, without limitation, the fees of counsel) on such Party’s behalf in connection with this Agreement or any transactions contemplated by this Agreement.
- Waivers. No waiver of any provision of this Agreement shall be effective except under a written instrument signed by the Party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
- Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties hereto. It supersedes all prior or contemporaneous written or oral communications or agreements between Chaos Labs and Client regarding the subject matter. This Agreement may only be amended by written agreement between Chaos Labs and Client.
- Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and constitute the same instrument.
- Acknowledgment. Client acknowledges that it has fully read and understands this Agreement, has had an opportunity to consult with its counsel regarding this Agreement, and, intending to be legally bound at this moment, has freely and voluntarily executed it.
- Headings. The section headings and subheadings used herein are for reference only and are not to be considered in the construction of this Agreement.
- No Presumption Against Drafter. The Parties agree that, despite any legal presumption or common law doctrine to the contrary, this Agreement shall not be construed against the drafter as both Parties have had the opportunity to participate in negotiating and drafting the terms and conditions and preparing this Agreement.
- Authority. The signatories below represent and warrant that they have read this Agreement, that they are fully authorized in the capacity shown, that they understand the terms of this Agreement, and that they are executing this Agreement voluntarily, upon their best judgment, and solely for the consideration described in this Agreement.
- Governing Law. All issues about the validity, construction, execution, and performance of this Agreement shall be construed and governed by the laws of the State of New York without giving effect to the conflict or choice of law provisions thereof.
- Arbitration. Any dispute or controversy arising under or in connection with this Agreement, other than injunctive relief, shall be settled exclusively by arbitration by the rules of the American Arbitration Association then in effect (the “Rules”). The number of arbitrators will be one, and such arbitrators will be selected according to the Rules. The arbitration seat, or legal place, will be New York County, New York, unless otherwise mutually agreed in writing. The arbitration award will be final and binding on the Parties. The Parties undertake to carry out any award without delay and waive their right to any form of recourse insofar as such waiver can validly be made. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant Party or its assets. In any such arbitration, each Party to the arbitration will bear its expenses, including expenses of attorneys, financial experts, and other witnesses; any arbitration fees and expenses of the arbitrator will be divided equally between the disputing Parties, provided, however, that the arbitrator may instead award all such fees and expenses (including a Party’s reasonable and documented attorney’s fees and other expenses) to the prevailing Party. Notwithstanding the preceding, either Party may seek equitable relief to enforce its rights in any court of competent jurisdiction.