Effective Date: March 19, 2020
THIS STORAGE NODE OPERATOR AGREEMENT (THE “AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (“STORAGE NODE OPERATOR,” “YOU", OR “YOURS”) AND STORJ LABS INC. (“COMPANY,” “US,” “WE” OR “OUR”), INCLUDING GOVERNING THE TERMS OF YOUR PARTICIPATION IN THE STORAGE NODE SERVICES. YOU UNDERSTAND AND AGREE THAT BY ACCEPTING THE TERMS OF THIS AGREEMENT, EITHER BY CLICKING TO SIGNIFY ACCEPTANCE, OR BY TAKING ANY ONE OR MORE OF THE FOLLOWING ACTIONS DOWNLOADING, INSTALLING, RUNNING,/AND OR USING THE APPLICABLE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT EFFECTIVE AS OF THE DATE THAT YOU TAKE THE EARLIEST OF ONE OF THE FOREGOING ACTIONS. YOU REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OLD OR OLDER AND HAVE THE RIGHT AND AUTHORITY TO ENTER INTO AND COMPLY WITH THE TERMS OF THIS AGREEMENT.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A BINDING ARBITRATION AND WAIVER OF CLASS ACTION RIGHTS PROVISION THAT REQUIRES THE USE OF INDIVIDUAL ARBITRATION TO RESOLVE DISPUTES AS SET FORTH IN THE Section 14 BELOW. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE ACCEPTANCE BOX, AND DO NOT DOWNLOAD, ACCESS, COPY, INSTALL OR USE THE SOFTWARE.
1. Definitions. In addition to the capitalized terms defined elsewhere above and herein, the terms below are defined as follows:>
1.1 “Commencement Date” means the first date on which Storage Materials are stored on a Storage Node pursuant to the terms of this Agreement.
1.2 “Device” means an independently operated computer or other electronic data storage device meeting all of the technical and other requirements set forth in this Agreement.
1.3 “NodeID” means a unique code generated when a Storage Node completes a proof of work as required during the setup and configuration of the Storage Node Software (as defined below) in order for a Device to communicate with the Storage Services.
1.4 “Storage Node Operator Services” means Storage Node Operator’s sharing of Space and Bandwidth on a Storage Node as part of the Storage Network in accordance with the terms of this Agreement.
1.5 “Storage Node Software” means the Storage Node Software which, when installed on a Device, enables such Device to participate in the Storage Network.
1.6 “Space” means the online storage sharing services provided to Users via a distributed network (“Storage Network”) of Storage Nodes by Company.
1.7 “Bandwidth” means upload and download network service for transfer of Storage Materials as defined below between the storage node and the online storage sharing services provided by Company to Users via the Storage Network (the “Storage Services”).
1.8 “Storage Materials” means data and materials stored by Users on a distributed network of Devices
1.9 “Storage Node” means a Device running the Storage Node Software and configured to communicate with the Storage Services.
1.10 “Storage Node Operator” means an individual or entity operating one or more Storage Nodes pursuant to the terms of this Agreement.
1.11 “User” means an individual or entity that uploads and stores Storage Materials to the Storage Network.
2. Storage Node Operator Services.
2.1 Company provides the Storage Services to Users pursuant to terms and conditions entered into by the applicable parties. You may implement and provide Storage Node Operator Service pursuant to the terms hereof during the Term of this Agreement. The Storage Node Operator Service includes the features and functionality applicable to the version of the Software installed by Storage Node Operator. Company may update the content, functionality, and user interface of the Storage Node Operator Service from time to time in its sole discretion.
2.2 Open Source Storage Node Software License. You have a non-exclusive, non-sublicenseable, non-transferable right to participate in the Storage Node Operator Service pursuant to this Agreement during the Term hereof solely for your internal business purposes subject to the limitations set forth herein. The Storage Node Software consists of open source code and is made available to you pursuant to the terms of the open-source license agreement(s) located at https://github.com/storj/storj/blob/master/LICENSE (the “Open Source License(s)”). Your use of the Storage Node Software is conditioned upon your compliance at all times with the terms of all applicable Open Source License(s), including without limitation all provisions governing access to source code, modification, and/or reverse engineering. You are responsible for complying with any applicable documentation, meaning any information that describes the Storage Services, provides instructions or recommendations related to the configuration and/or use of the Storage Services, or otherwise informs Users of the intended use of the Storage Services, including, but not limited to content provided directly to user or published at https://documentation.tardigrade.io, https://documentation.storj.io, or otherwise made available in conjunction with the Storage Services or Storage Node Software (“Documentation”) and for satisfying all technical requirements of the Storage Node Software, including any requirements set forth in the Documentation for ensuring that the Storage Node Software performs properly.
3. Storage Node Operator Grant of Right to Storage Node.
3.1 Grant of Right to Storage Node. By making available Space and Bandwidth on your Storage Node to share with Company via the Storage Node Software, you hereby grant to Company and Users the irrevocable right to access and use the Storage Node as follows:
3.1.1. to store Storage Materials on your Storage Node in accordance with the parameters you set via the Storage Node Software installed on such Storage Node; and
3.1.2. to access such Storage Materials from your Storage Node at any time, in accordance with parameters you set in the Storage Node Software.
4. Storage Node Operator Responsibilities.
4.1 At all times during the Term of this Agreement or the period when Storage Materials are maintained in your Storage Node, whichever is longer:
4.1.2. You will operate the Storage Node in strict compliance with terms of this Agreement and will not take any action not expressly authorized hereunder.
4.1.3. You will not modify or attempt to modify the Storage Node Software for any purpose including but not limited to attempting to circumvent the audit, bypass security, manipulate the performance of, or otherwise disrupt the Storage Services for any reason, including but not limited to attempting to increase the amount of data stored or bandwidth utilized or the amount of Storage Node Fees, as defined herein, and you will not otherwise interfere with the operation of the Storage Services.
4.1.4. You will provide and maintain the Storage Node so that, at all times, it will meet the following minimum requirements (“Minimum Storage Node Requirements”):
220.127.116.11. Have a minimum of one (1) hard drive and one (1) processor core dedicated to each Storage Node;
18.104.22.168. Have a minimum of 500 GB of available Space per Storage Node;
22.214.171.124.1. Operate with at least 2 TB of Bandwidth available per month;
126.96.36.199.2. Operate with at least 5 Mbps bandwidth upstream;
188.8.131.52.3. Operate with at least 25 Mbps bandwidth downstream;
184.108.40.206.4. Is online and operational no less than 99.3% of the time per month;
220.127.116.11.5. meet all performance requirements referred to in this Agreement, as well as any performance requirements set forth in the Documentation or in other instructions made available with the Storage Node Software or otherwise hereunder;
18.104.22.168.6. be connected to the Internet to enable Company and its Users to store and access the Storage Materials with a minimum of 99.3% availability as measured on a monthly basis; and
22.214.171.124.7. be run with sufficient Bandwidth without other applications consuming a percentage of the available Bandwidth so as not to create network congestion or any other form of Internet connectivity degradation.
4.1.5 You will implement and maintain adequate administrative, organizational, physical and technical safeguards to ensure the protection, confidentiality, security, and integrity of the Storage Node and Storage Materials and shall take all reasonable steps to ensure that Storage Materials are not disclosed, accessed, used, modified, or distributed except as expressly authorized under this Agreement.
4.1.6 You acknowledge and agree that by running the Storage Node Software on your Device and allowing Space and Bandwidth to be utilized by Company and/or Users, your Device may be impacted due to additional constraints being placed on it by the Storage Node Software and the processing of Storage Materials. In particular, but without limiting the generality of the foregoing, your Device may not operate as quickly as it would without running the Storage Node Software and making Space and Bandwidth available for use by Users.
4.1.7 In connection with your use of the Storage Node Software and/or operation of a Storage Node hereunder, Company may, from time to time, require you to affirm and/or reaffirm your agreement to the terms of this Agreement, and in such case, your continued use of the Storage Node Software is contingent upon your promptly providing such affirmation as requested by Company.
4.1.8. If and when you permanently cease to operate an applicable Storage Node hereunder for any reason, you will take the following steps to ensure a seamless and non-disruptive exit from the Storage Services: you will (a) first implement the applicable function provided in the Storage Node Software by which Storage Materials stored on the Storage Node shall be uploaded to the Storage Services prior to the time when the Storage Node is permanently disconnected from the Storage Network; and (b) comply with any and all instructions of Company for ceasing Storage Node Operation prior to ceasing operation of the Storage Node ((a) and (b) referred to collectively as a “Graceful Exit”). Any time you cease operation of a Storage Node, it is subject to the requirements and conditions of Section 8. herein.
4.2. Administration of Storage Node. You, as the Storage Node Operator, acknowledge that you retain administrative control over to whom you grant access to the applicable Storage Node. You are responsible for maintaining the security of the Storage Node including without limitation all applicable accounts and passwords used to gain access to the device the node is running on.
4.3. Suspension. Company may suspend Storage Node Operator’s participation in the Storage Services if Company believes Storage Node Operator to be: (a) violating any term of this Agreement; or (b) using the Storage Node Operator Service in a manner that Company reasonably believes may cause a security risk, a disruption to the Storage Services, or liability for Company.
5. Restrictions. You will operate the Storage Node in strict accordance with the terms of this Agreement and in no other manner. Without limiting the generality of the foregoing, you will not:
5.1.1(a) rent, sublicense, re-sell, assign, transfer, distribute, time share, or similarly exploit the Storage Service; (b) reverse engineer, copy, modify, adapt, hack the Storage Service, or otherwise attempt to gain unauthorized access to the Storage Service or its related systems or networks; (c) access the Storage Service, the Documentation, or Company’s Confidential Information to build a competitive product or service; (d) alter or remove, or permit any third party to alter or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Storage Service; (e) allow Storage Nodes to be shared or used by anyone other than Storage Node Operator; or (f) access or use the Storage Service: (i) in violation of applicable laws; (ii) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, or scripts; or (iii) in a manner that interferes with or disrupts the integrity or performance of the Storage Service (or the data contained therein).
With respect to the Storage Materials (i) reverse engineer any aspect of the Storage Materials or do anything that might discover the contents or origin of the Storage Materials,(ii) attempt to bypass or circumvent measures employed to prevent or limit access to the Storage Materials, including by attempting to defeat any encryption, or (iii) attempt to interfere with the storage or transmission of Storage Materials or with our audits of your Device;
Operate more than one (1) Storage Node using different Payment Addresses for each Storage Node;
Operate more than one (1) Storage Node behind the same IP address;
Operate a Storage Node that does not meet all of the Minimum Requirements;
Disconnect a Storage Node or otherwise purposefully render it “offline” for any reason other than Company-required maintenance or Storage Node Software updates;
5.1.2. Manipulate or otherwise attempt to bypass, change, or update any values related to uptime detection outside the programmatic operation of the Storage Node Software;
5.1.3. Limit or otherwise negatively impact download speed such that insufficient bandwidth is available for required audit traffic;
5.1.4. Delete or otherwise render Storage Materials unavailable for recovery independent of the programmatic functionality of the Storage Node Software following the expiration given by a Programmatic Time-to-Live (“TTL”);
5.1.5. Manipulate or alter the TTL of Storage Materials or alter the reported size of any Storage Materials;
5.1.6. Refuse or intentionally fail to deliver any Storage Materials in response to a valid request;
5.1.7. Manipulate or alter the default behavior of the Storage Network to artificially increase or decrease the value of any reputation factor of any Storage Node;
5.1.8. Manipulate network responses to any request with unauthorized intent to change the cryptographic signatures, NodeID, or Payment Address;
5.1.9. Manipulate or otherwise falsify bandwidth allocation messages;
5.1.10. Attempt to manipulate or falsify NodeID or otherwise bypass the proof of work process;
5.1.11. Retain any Storage Materials after the earlier of termination of this Agreement or Disqualification of the applicable Storage Node at any time; or
5.1.12. Manipulate or alter the default behavior of the Storage Network to artificially increase or decrease the value of any reputation factor of any Storage Node;
5.1.13. Manipulate network responses to any request with unauthorized intent to change the cryptographic signatures, NodeID, or Payment Address;
5.1.14. Manipulate or otherwise falsify bandwidth allocation messages;
5.1.15. Attempt to manipulate or falsify NodeID or otherwise bypass the proof of work process;
5.1.16. Retain any Storage Materials after the earlier of termination of this Agreement or Disqualification of the applicable Storage Node at any time; or
5.1.17. In any other way attempt to interfere, impede, alter, or otherwise interact in any manner not expressly authorized hereunder with the Storage Services or the operation of any other Storage Node(s).
6. Representations and Warranties. Storage Node Operator hereby represents, warrants, and covenants that:
6.1. You own or control your Device(s), and have the right to install the Storage Node Software, share Space and Bandwidth on your Device(s) pursuant to this Agreement, and otherwise comply with all of your obligations under this Agreement;
6.2. You represent and warrant that you are authorized to receive the Storage Node Fees via the Storage Node Software as set forth in this Agreement (“Payment Method”). If your Payment Method cannot be verified, is invalid, or is not otherwise acceptable, then in addition to any other rights and remedies available to Company hereunder, your right to receive payment of the Storage Node Fees may be suspended automatically and indefinitely;
6.3. You have full power and authority to enter into this Agreement and comply with all terms hereof, and that doing so will not conflict with any obligation you may owe to any third party;
6.4. You have the qualifications, skill, and ability to perform your obligations hereunder without the advice, control, or supervision of Company; and
6.5. You will at all times comply with all applicable foreign, federal, state, and local laws, orders, rules, and regulations currently in effect or that may come into effect during the term of this Agreement, including but not limited to those regarding data privacy and protection.
7. Audit Rights; Containment Mode.
7.1. Audit Rights. You authorize the Storage Services and/or the Company to periodically audit the performance of your Storage Node to ensure that you are in compliance with this Agreement, or to ensure that the Storage Materials are being stored properly on your Device, or for any other reasonable purpose in connection herewith (“Audit”). You will not interfere with, disrupt, or otherwise impede any such Audit.
7.2. Containment Mode. If your Storage Node fails to respond to an Audit from the Storage Services, the Storage Services will place your Storage Node in containment mode pursuant to which you will not be eligible to receive any additional Storage Materials to store on your Device nor to receive any Storage Node Fees that may be due for Storage Services previously provided (“Containment Mode”). The Storage Services will retry the same Audit request periodically until your Storage Node responds successfully to the Audit request, at which time your Storage Node will be removed from Containment Mode. If your device is removed from Containment Mode after having been placed in Containment Mode, your Storage Node will resume normal operation and you will not be subject to further penalty. If your Storage Node remains in Containment Mode for 7 days, your Storage Node will be subject to Disqualification as defined below.
8. Storage Node Fees.
8.1. Storage Node Fees. Subject to the terms of this Agreement, in full and final payment for your provision of the Node Services hereunder, Company will pay you based upon the amount of Space and Bandwidth utilized by Company and users of its Storage Services via the Storage Node Software (“Storage Node Fees”). We will pay the Storage Node Fees in the Company’s proprietary virtual currency, called Storj’s Utility Token (STORJ). The amount will be calculated based on the current exchange rate shortly before the time the payout is initiated as listed on https://coinmarketcap.com/ or such other service as Company may use from time to time. The determination of the timing and value of the exchange rate is made at Company’s sole discretion, and any such determination is final and binding. You acknowledge and agree that you are not entitled to any amounts other than the Storage Node Fees in connection with this Agreement.
8.2. Calculation. Storage Node Fees will be calculated for usage of the following Storage Node resources by the Storage Services:
8.2.1. Storage of Storage Materials on Space - use of Space on the Storage Node by the Storage Services calculated in GB hours per month is paid at a rate of $0.0015 (USD) per GB month;
8.2.2. Egress related to Uplink Clients - egress bandwidth used when Users retrieve Storage Materials from the Space via applications registered with Company for such purpose (“Uplink Clients”) calculated in GB is paid at a rate of $0.02 per GB (USD);
8.2.3. Egress related to file repair - egress bandwidth used when Company retrieves Storage Materials from the Space via the Storage Services for the purpose of file repair calculated in GB is paid at a rate of $0.01 per GB (USD); and
Audit Bandwidth - egress bandwidth used when Company retrieves Storage Materials from the Space via the Storage Services to perform an Audit calculated in GB is paid at a rate of $0.01 per GB (USD).
Exclusions. Storage Node Fees will not be paid for the following Storage Node usage:
8.3.1.Storage of Garbage Data – storage of data on a Storage Node that was not removed by the Storage Node following deletion of such Storage Data by an Uplink Client (“Garbage Data”) where such data will otherwise be removed via the Storage Services garbage collector function; and
8.3.2. Other Resources - Company will not pay for any other resources not specifically identified in Section 8.2 above.
8.4.1 You must provide a valid ERC20 Compatible Wallet Address (“STORJ Payment Address”) in order to receive compensation in the form of STORJ tokens.
8.4.2. You will be responsible for payment of all applicable taxes associated with our payment of Storage Node Fees, including but not limited to taxes on gross receipts and income. Upon Company’s request, you will accurately and promptly complete and return to Company all tax forms required by Company.
8.4.3. If you are an individual or entity whose Company is required to collect an I.R.S. Form W-8, you must provide Company with a completed Form W-8 including all information required thereunder prior to the receipt of any Storage Node Fees.
Held Amount. During the first nine (9) months you operate an applicable Storage Node, Company will hold back a percentage of Storage Node Fees accrued by you per the following terms(the “Held Amount”). The Held Amount is not earned by you unless and until you achieve a Duration Release and/or a Graceful Exit Release as set forth below
8.5.1. Calculation of the Held Amount
126.96.36.199 Months 1-3: Held Amount = 75% of the Storage Node Fees accrued during such period
188.8.131.52 Months 4-6: Held Amount = 50% of the Storage Node Fees accrued during such period
184.108.40.206 Months 7-9: Held Amount = 25% of the Storage Node Fees accrued during such period
220.127.116.11 Months 10+: 100% of the Storage Node Fees accrued during that period is paid to the Storage Node Operator
8.5.2. The Held Amount will be retained by Company in full unless and until you achieve a Duration Release and/or a Graceful Exit Release (as defined below, and collectively, the “Release(s)”) one or both of the releases defined below, at which point(s) the applicable portion of the Held Amount will be deemed earned by you and will be paid to you by Company:
18.104.22.168. Duration Release. If Storage Node Operator continues actively to store Storage Materials on the applicable Storage Node without breach or interruption for fifteen (15) consecutive months (the “15-Month Period”), Company will pay you fifty percent (50%) of the Held Amount (“Duration Release”).
22.214.171.124. Graceful Exit Release. If you achieve the Duration Release, and if you complete a Graceful Exit referred to in Section 4.1.8 above, Company will pay you the remaining fifty percent (50%) of the Held Amount (“Graceful Exit Release”).
8.5.3. Failure to Achieve a Release. If Storage Node Operator ceases to operate the applicable Storage Node for any reason or in any manner prior to the Duration Release date, the Storage Node Operator will be deemed not to have earned and will immediately forfeit any right to all or any portion of the Held Amount which shall be retained permanently by Company. If Storage Node Operator earns 50% of the Held Amount under a Duration Release but fails thereafter to achieve a Graceful Exit Release, the Storage Node Operator will be deemed not to have earned and will immediately forfeit any right to all or any portion of the remainder of the Held Amount which shall be retained permanently by Company.
8.6 Disqualification. If you or your Storage Node violates any term of this Agreement, including without limitation any of the representations or warranties set forth herein, or if the Storage Node remains in Containment Mode for more than 7 days per Section 4 (Audit Rights/Containment Mode) above, your Storage Node may, in the Company’s sole and absolute discretion, be subject to Disqualification. For purposes hereof, the term “Disqualification” means the applicable Storage Node is permanently banned from communicating with the Storage Services, is entitled to no future payment of Storage Node Fees, and immediately forfeits any Held Amount held by the Storage Services. Following Disqualification, in order to resume operation with the Storage Network, a Device must reinstall the Storage Node Software and create a new Storage Node with a new NodeID and signed identity and all other requirements set forth in this Agreement must be met by the Storage Node Operator and the Storage Node.
8.7. Expenses. Storage Node Operator is not authorized to incur any expenses on behalf of Company. Storage Node Operator is solely responsible for all expenses it incurs in connection with this Agreement, and Company shall not reimburse Storage Node Operator for any expenses hereunder.
8.8. Taxes. The Storage Node Fees shall be inclusive of any and all taxes applicable to the Services delivered hereunder. Notwithstanding the foregoing, you shall list on its invoices any and all valid sales and other taxes on Services provided hereunder. You shall be responsible for payment of all taxes applicable to you arising out of its activities hereunder this Agreement, including but not limited to, federal, state, local, and applicable foreign income tax, Social Security tax, unemployment insurance tax, and any other tax or business license fee as required. If Company reasonably determines that applicable law requires that any taxes should be withheld from any payments of Fees hereunder, it reserves the right to withhold such taxes and notify you accordingly.
8.9. Modification of Payment Terms. Company reserves the right to modify the terms of this Section 8 (Storage Node Fees) at any time, including the rate of payment and the Storage Node resources for which Storage Node Fees is paid.
8.10 Breach. In addition to its other rights and remedies under this Agreement, Storage Node Operators forfeit any right to compensation under this Agreement if Storage Node Operator breaches any term hereof.
9. Term; Termination.
9.1. Term. This Agreement shall be effective as of Commencement Date and will continue until terminated per the terms below.
9.1. Termination. Either party may terminate this Agreement immediately without notice to the other party.
9.1. Effect of Termination. If Company terminates this Agreement for your breach of this Agreement, Company will have no obligation to pay any unpaid Storage Node Fees. If Company terminates this Agreement for any other reason, Company may pay you via the Payment Method any unpaid Storage Node Fees due and payable to you hereunder less all or any portion of the Held Amount permanently retained by Company pursuant to Section 8 above.
10.1. Company Ownership. Except for Storage Node Software subject to the Open Source License, and except for any rights expressly granted under this Agreement, Company and its licensors own and shall retain all right, title, and interest in and to the Storage Services (including any improvements, enhancements, customizations, and modifications thereto), the Documentation, Company Confidential Information, and the Derived Data, including, without limitation, all related intellectual property rights therein. For purposes hereof, the term “Derived Data” means data derived from operation of the Storage Node and of the Storage Services via the Storage Node, and any data that is aggregated by Company (including aggregations with data sourced from other Storage Node Operators and other third party data sources), and data and information regarding Storage Node Operator’s access to and participation in the Storage Services, including, without limitation, statistical usage data derived from the operation of the Storage Node and Storage Services and configurations, log data and the performance results related thereto. For the avoidance of doubt, nothing herein shall be construed as prohibiting Company from utilizing Derived Data to optimize and improve the Storage Service or otherwise operate Company’s business; provided that if Company provides Derived Data to third parties, such Derived Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Storage Node Operator to any third party. No rights are granted to Storage Node Operator hereunder other than as expressly set forth in this Agreement
10.2. Third Party Data. The Service may include access to various confidential and proprietary third party data that is utilized along with the Service, and all such data is owned by the applicable third party source or vendor. Storage Node Operator may only use such data as part of the Service and may not extract or otherwise utilize any such data except as included in and in connection with the Service. This data is compiled from third party sources, including but not limited to, public records, user submissions, and other commercially available data sources. These sources may not be accurate or complete, or up-to-date and is subject to ongoing and continual change without notice. Neither Company nor its third party data sources make any representations or warranties regarding the data and assume no responsibility for the accuracy, completeness, or currency of the data.
10.3. Feedback. Company shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Storage Node Software and/or the Storage Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Storage Node Operator relating to the features, functionality, or operation thereof (“Feedback”). Company shall have no obligation to use Feedback, and Storage Node Operator shall have no obligation to provide Feedback.
11.1. Definition of Confidential Information. During the course of performance under this Agreement, each party may make available to the other party information that is not generally known to the public and at the time of disclosure is either identified as or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, but is not limited to, specialized telemetry data or dashboards, Company business plans, product plans and roadmaps, strategies, forecasts, projects and analyses, financial information and fee structures, business processes, methods and models, and technical documentation. Confidential Information does not include information that (a) is or becomes publicly available without breach of this Agreement by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.
11.2. Protection of Confidential Information. Except as otherwise expressly permitted under this Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit, or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. The receiving party may disclose the disclosing party’s Confidential Information to its employees, affiliates, consultants, subcontractors, agents, or advisors (“Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. Either party may disclose the terms of this Agreement to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for purposes of the proposed transaction, provided that any such potential party is subject to written non-disclosure obligations and limitations on use no less protective than those set forth herein.
11.3. Equitable Relief. The receiving party acknowledges that the remedy at law for breach of this Section 11 may be inadequate and that, in addition to any other remedy the disclosing party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this Section 11 by the receiving party or any of its Representatives and to enforce the terms and provisions of this Section 11 in addition to any other remedy to which the disclosing party is entitled at law or in equity.
11.4. Compelled Disclosure. The receiving party may access and disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to such access or disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures. If the receiving party is compelled by law to access or disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, the disclosing party will reimburse the receiving party for the reasonable costs of compiling and providing secure access to such Confidential Information. Receiving party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
12.1.Indemnity. To the fullest extent permitted by applicable law, you will defend, indemnify and hold harmless Company and our respective past, present, and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (the “Company Parties”) from and against all claims, damages, costs and expenses (including attorneys’ fees) that arise from or relate to: (i) your use of the Storage Node Software; (ii) your participation in the Storage Services and/or your storage of Storage Materials hereunder; (iii) any Feedback you provide; or (iv) your breach of any of this Agreement.
12.2. Procedures. Company reserves the right to exercise sole control over the defense of any claim subject to indemnification under Section 9.1 above, at your expense. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Company.
12.3. Potential Infringement. If the Storage Node Software becomes, or in Company’s reasonable judgment is likely to become, the subject of a claim of infringement, then Company may in its sole discretion: (a) obtain the right, for Storage Node Operator to continue using the Storage Node Software; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Storage Node Software so that it is no longer infringing. If Company, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then Company may, without liability, suspend or terminate Storage Node Operator’s use of the Storage Node Software. This Section 12 states Company’s sole liability and Storage Node Operator’s exclusive remedy for infringement claims.
13. DISCLAIMER; LIMITATION OF LIABILITY.
13.1. DISCLAIMER. THE SOFTWARE, INCLUDING WITHOUT LIMITATION THIRD-PARTY CODE, THE STORAGE SERVICES, AND THE STORAGE MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT THE SOFTWARE, STORAGE SERVICES, OR STORAGE MATERIALS WILL BE UNINTERRUPTED, ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, VIRUS FREE, OR FREE OF MALICIOUS CODE OR HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED. COMPANY DOES NOT CONTROL, ENDORSE, SPONSOR, OR ADOPT ANY STORAGE MATERIALS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE STORAGE MATERIALS. COMPANY HAS NO OBLIGATION TO SCREEN, MONITOR, OR EDIT STORAGE MATERIALS AND IS NOT RESPONSIBLE OR LIABLE FOR ANY STORAGE MATERIALS. YOU ACKNOWLEDGE AND AGREE THAT COMPANY HAS NO INDEMNITY, SUPPORT, SERVICE LEVEL, OR OTHER OBLIGATIONS HEREUNDER.
13.2. LIMITATION OF LIABILITY. COMPANY SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUE, DATA, OR DATA USE, OR DAMAGE TO BUSINESS) HOWEVER CAUSED, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION EVEN PREVIOUSLY ADVISED OF SUCH DAMAGES IN ADVANCE OR IF SUCH DAMAGES WERE FORESEEABLE, AND IN NO EVENT WILL COMPANY’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED US $25.
14. Governing Law; Information Dispute Resolution; Arbitration.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
14.1. Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in Fulton County, Georgia. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
14.2. Informal Dispute Resolution; Arbitration. The parties agree that most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute directly through consultation with each other before initiating a lawsuit or arbitration. If, after good faith negotiations the parties are unable to resolve the dispute, the parties agree that any and all disputes arising out of or in any way relating to this Agreement, including without limitation its existence, validity or termination, shall be resolved according to Delaware law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be Fulton County, Georgia unless otherwise agreed upon by the parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of this Section mandating arbitration shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes. Notwithstanding the foregoing, either party shall be entitled to seek injunctive relief as set forth in Section 11.3 (“Equitable Relief”) above and to stop unauthorized use of the Storage Node Software or infringement of Intellectual Property Rights. Disputes, claims, or controversies concerning either party’s Intellectual Property Rights or claims of piracy or unauthorized use of the Storage Node Software or Storage Node Operator Service shall not be subject to arbitration. The parties further agree that the prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
15. Export Compliance. The Storage Node Software may be subject to export laws and regulations of the United States and other jurisdictions. Storage Node Operator represents that it is not named on any U.S. government denied-party list. Storage Node Operator shall not access or use the Storage Node Software or provide the Storage Node Operator Service in a U.S.-embargoed or any sanctioned country or region or in violation of any U.S. export law or regulation. Storage Node Operator shall not use the Service to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Storage Node Operator operates or does business.
16. Use of Storage Node Software in Your Jurisdiction. Except as explicitly set forth herein, Company makes no representations that the Storage Node Operator Service is appropriate for use in any jurisdictions. Storage Node Operators engaging with the Storage Node Operator Service from any jurisdictions do so at their own risk and are responsible for compliance with local laws.
17.1.1. Entire Agreement; Severability; Waiver. This Agreement sets forth the complete and final agreement of the parties concerning the subject matter hereof, and supersedes, replaces all prior agreements, written and oral, between them concerning the subject matter hereof. If a term of this Agreement to be invalid or unenforceable, the remaining provisions will continue in full force and effect. A party’s consent to, or waiver of, enforcement of this Agreement on one occasion will not be deemed a waiver of any other provision or such provision on any other occasion.
17.1.2. Amendment. We reserve the right to change this Agreement from time to time in our sole discretion. If we make material changes to this Agreement, we will provide notice of such changes, such as by posting the revised Node Operator Terms to the Storage Node Software and updating the “Last Updated” date at the top of this Agreement. By continuing to access or use the Storage Node Software or otherwise participate in the Storage Node Operator Service after the posted effective date of modifications to this Agreement, you agree to be bound by the revised version of the Agreement. If you do not agree to the modified Agreement, you must stop interacting with the Storage Services and Storage Network.
17.1.3. Independent Contractors. The parties are independent contractors. No agency, partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement. Neither party has the power or authority to create or assume any obligation, or make any representations or warranties, on behalf of the other party.
17.1.4. Notices. Notices to Company made under this Agreement shall be made by email to email@example.com AND in writing and delivered by certified, prepaid, U.S. mail (return receipt requested) or nationally-recognized overnight courier service to Storj Labs Inc., 3423 Piedmont Road NE, Suite 475, Atlanta, Georgia, 30305, United States attention Legal Department. You agree to receive electronically all communications, agreements, documents, notices, and disclosures that we provide in connection with the Storage Node Operator Service (“Communications”). We may provide Communications in a variety of ways, including by e-mail, text, in-app notifications, or by posting them on the website or through the Service. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
17.1.5. Survival. The following sections will survive the expiration or termination of this Agreement: all defined terms and Sections 1. Definitions, 6. Representations & Warranties, 8. Storage Node Fees, 9. Term & Termination, 10. Ownership, 11. Confidentiality, 12. Indemnification, 13. Disclaimers; Limitation of Liability, 14. Governing Law; Information Dispute Resolution; Arbitration, and 17. General
17.1.6. Miscellaneous. This Agreement constitutes the entire agreement between you and Company relating to the subject matter of this Agreement. The failure of Company to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. We will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control. You shall not assign all or any portion of this Agreement to any third party without Company’s prior written consent in its sole discretion. Any assignment in violation hereof shall be null and void. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement is intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Headings used herein are for convenience only and are not intended, nor shall they be used, as an aid to interpretation.