PLEASE READ THESE DEVELOPER TERMS OF USE (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY HORKOS, INC. D/B/A PRIVY (“PRIVY”). YOU (“DEVELOPER”) HEREBY AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ANY DOCUMENTATION AND OTHER AGREEMENTS EXECUTED WITH PRIVY RELATING TO DEVELOPER SERVICES, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Access to the Service

Subject to Developer’s compliance with the terms and conditions of this Agreement, Privy grants Developer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use Privy product(s) and/or service(s) (collectively, the “Service,” or “Services”) during the applicable Term (as defined below) for the internal business purposes of Developer, only as provided herein and only in accordance with Privy’s applicable official user documentation for such Services (the “Documentation”).

2. Creating Wallets

Developers and/or Developer end users (“Users”) may create Wallets via the Services. A “Wallet” is an intangible medium which secures a set of cryptographic keys for a user enabling them to sign arbitrary messages on behalf of third party applications. This includes signature of cryptocurrency transactions enabling the Developer or the User, as applicable, to control digital assets. Wallets provided by Privy are self-custodial (whether custodied directly by a User or by a Developer), meaning that Privy does not store or have access to Wallets, private keys or any assets held within the Wallets. Wallets can be orchestrated by Privy or a third party service provider of the User’s choosing, in which case Developer agrees to, and shall direct Users to comply with, all rules, agreements and requirements of such third party service provider.  One feature of Privy’s wallet services is to provide Users with an embedded wallet (an “Embedded Wallet”) of their own, or the ability to connect their existing, third-party wallets to an app.  Privy also enables Developers to create and configure wallets in connection with apps or other services offered by such Developers to Users (such wallets, “Server Wallets”, “Server Signers” or “Signing Service”).  All wallets, including both Embedded Wallets and Server Wallets, are referred to herein as “Wallets.”  Upon creation of a Wallet, “user entropy” will be created, which is a sequence of characters inputted by the User or Developer, as applicable, enabling generation of encryption keys to protect the Wallet. Developer and its Users are solely responsible for storing and safeguarding such sequence of characters which can be used to recover access to their Wallet, passwords, private keys, recovery phrases and other credentials associated with use of Wallets (“Credentials”), and Developer agrees to, and shall direct its Users to, use commercially reasonable efforts to prevent unauthorized access to, or use of, Wallets and all other accounts through the Services, except for any portion of the private keys associated with a Wallet that are solely stored by Privy (the “Privy Wallet Shard”). Developer acknowledges on behalf of its Users that: (A) Privy only provides self-custodied Wallets (whether custodied directly by a User or by a Developer);  (B) Privy does not store or have access to Users’ Wallets, Credentials, or assets contained in Wallets; and (C) Privy cannot assist with retrieving any such Credentials, in each case, other than the Privy Wallet Shard, for which Privy shall use commercially reasonable efforts to maintain the confidentiality and safeguard from unauthorized access. Any unauthorized access to a Wallet could result in the loss or theft of any asset that may be held in the Wallet, including any linked financial information such as bank accounts and financial accounts. If Developer or any User notices any unauthorized or suspicious activity in Wallet(s) or accounts that are related or linked to the Services, such Developer or User agrees to notify Privy immediately through his or her account or by emailing [email protected]. As part of its Services, Privy offers Developer an alternative set of Wallet recovery services under which Privy generates entropy on the User’s behalf. Using this alternate system, Privy can assist the User with Wallet recovery but still cannot access Credentials or any other User assets stored in Wallets. Developer will at all times be responsible for the acts or omissions of any person who accesses an account or Wallet provided through the Services.

3. Delegated Actions and Server Wallets

You may enable Users to delegate certain signing authority for an Embedded Wallet to you (a “Delegated Action”).  If you use Delegated Actions, you will have the ability to sign transactions on a User’s behalf.  In addition, you may configure Server Wallets so that the root-of-trust sits with you (the Developer) or another third party or third parties including, but not limited to the, User.  You are responsible for providing all notices, and obtaining all consents, as necessary to implement and configure such Delegated Actions and Server Wallets.  With respect to any Delegated Action or Server Wallet for which the root of trust does not sit with the User, you are responsible for describing to the User—in a manner that is accurate, clear and concise—exactly how the Delegated Action or Server Wallet (as applicable) will function, including the rights that you or any third-party will have to sign transactions on behalf of the applicable User.  Privy is not responsible for providing notices to, or obtaining consents from, any User in connection with a Delegated Action or Server Wallet.  In addition, we cannot and do not make any guarantee regarding the configuration of Delegated Actions or Server Wallets.  You, the Developer, are fully responsible for the configuration and implementation of any Delegated Action or Server Wallet.  Without limiting the foregoing, we cannot and do not guarantee that Delegated Actions or Server Wallets will be deemed self-custodial services as to you, the Developer, depending on your configuration of these systems. 

4. Service Updates; Beta Products

From time to time, Privy may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Privy shall have no obligation under this Agreement or otherwise to provide any such Updates. Developer understands that Privy may make improvements and modifications to the Services at any time in its sole discretion; provided that Privy shall use commercially reasonable efforts to give Developer reasonable prior notice of any major changes that might adversely impact Developer’s use of the Services. 

5. Ownership; Feedback

As between the parties, Privy and its licensors retain all right, title, and interest in and to the Services and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Privy for the purposes of this Agreement, including any copies and derivative works of the foregoing.  Any software which is distributed or otherwise provided to Developer hereunder shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. Except with respect to Third Party Services, the Services are proprietary to Privy, and as between the parties, Privy retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property rights therein. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.  Developer may provide suggestions, comments or other feedback to Privy with respect to the Services (“Feedback”).  Feedback, even if designated as confidential by Developer, shall not create any confidentiality obligation for Privy notwithstanding anything else.  Developer shall, and hereby does, grant to Privy a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.  Subject to the confidentiality and non-use obligations contained in this Agreement, nothing herein will impair Privy’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Developer may develop, produce, market, or distribute.

6. Fees; Payment

Developer shall pay Privy fees for the Services as set forth on Privy’s pricing page (“Fees”).  All Fees shall be invoiced monthly in arrears and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Company uses a third party Payment Processor, and Developer authorizes Company, through the Payment Processor, to charge Developer’s chosen payment provider (your “Payment Method”) and Developer agrees to the terms, conditions and privacy policies of the Payment Processor. Our submission of charges to your Payment Method does not waive our right to seek payment directly from you. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law.  Developer shall be responsible for all taxes associated with Services (excluding taxes based on Privy’s net income).  All Fees paid are non-refundable and are not subject to set-off. If Developer exceeds any usage limitations set by Privy, then (i) Privy shall invoice Developer in the following month for such additional usage at its overage rates. Developer agrees to accept responsibility for all recurring charges prior to termination or non-renewal and Developer’s continued use of the Services reaffirms that Company is authorized to charge the Payment Method for the Services. If the Agreement is terminated before the end of a 30-day period, Developer will not be eligible for a prorated refund of Fees paid. PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE COMPANY WILL NOT REFUND ANY FEES ALREADY PAID.  IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE SERVICE BY REACHING OUT VIA EMAIL TO YOUR ACCOUNT MANAGER (OR AT [email protected]).

7. Restrictions

Except as expressly set forth in this Agreement, Developer shall not (and shall not allow any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Services for the benefit of a third party other than a User; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Privy product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Service; (viii) bypass any measures Privy may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Service); (ix) make available to Privy any Developer Data (as defined below) without having obtained full permission and required consents or rights to do so; ; or (x) configure Delegated Actions or Server Wallets in a manner that is misleading or is intended to divert, misappropriate or otherwise obtain unauthorized access to assets stored within Wallets. Developer is responsible for all of Developer’s activity in connection with the Service, including but not limited to uploading Developer Data onto the Service.  Developer (A) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Developer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (B) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.

8. Developer Data

For purposes of this Agreement, “Developer Data” shall mean any data, information or other material provided, uploaded, or submitted by Developer to the Services in the course of using the Services. As between Developer and Privy, Developer shall retain all right, title and interest in and to the Developer Data, including all intellectual property rights therein. Developer, not Privy, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Developer Data. Developer represents and warrants that it has all rights and consents necessary to provide the Developer Data to Privy as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Privy shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Developer Data. Privy is not responsible to Developer for unauthorized access to Developer Data or the unauthorized use of the Services unless such access is due to Privy’s gross negligence or willful misconduct. Developer is responsible for the use of the Services by any person to whom Developer has given access to the Services, even if Developer did not authorize such use. Developer acknowledges that the Services may enable Users to control the use of their data. Developer retains full responsibility for any services it renders to Users, and Privy does not assume any responsibility such services. Notwithstanding anything to the contrary, Developer acknowledges and agrees that Privy may (i) internally use and modify Developer Data for the purposes of (A) providing the Services to Developer, (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use, retain and make available Aggregated Anonymous Data for Privy’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Privy’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Privy in connection with Developer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Developer.

9. Confidentiality

For purposes of this Agreement, “Confidential Information” shall mean to the extent previously, presently or subsequently disclosed by or for either party (the “Disclosing Party”) to the other party (the “Receiving Party”) all financial, business, legal and technical information of the Disclosing Party or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, abstracts, summaries, analyses and other derivatives thereof), that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or confidential. Confidential Information shall not include any information that (i) was rightfully known to the Receiving Party without restriction before receipt from the Disclosing Party, (ii) is rightfully disclosed to the Receiving Party without restriction by a third party, (iii) is or becomes generally known to the public without violation of this Agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party or its employees without access to or reliance on such information. The Documentation and Feedback are Privy’s Confidential Information, and the Developer Data is Developer’s Confidential Information. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as permitted under this Agreement, and shall not disclose such Confidential Information to any third party except (A) as expressly permitted herein without the Disclosing Party’s written consent or (B) to Receiving Party’s employees, contractors and agents that have a need-to-know such Confidential Information for the sole purpose of performing its obligations under this Agreement and who are bound by written agreements that include confidentiality and non-use obligations at least as restrictive as the terms hereunder. The Receiving Party shall be responsible for its employees’, contractors’ and agents’ compliance with the terms hereunder. The Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the Disclosing Party’s Confidential Information, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, the Receiving Party will either return or, at the Disclosing Party’s request, destroy the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain copies of the Disclosing Party’s Confidential Information for routine backup and archival purposes subject to the confidentiality and non-use obligations set forth herein. The Receiving Party may make disclosures required by law or court order provided that, if permissible pursuant to applicable law, the Receiving Party shall promptly notify the Disclosing Party of any disclosure requirement and provide reasonable assistance to the Disclosing Party in the Disclosing Party’s efforts to prevent and/or limit the disclosure.

10. Third Party Services

Developer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated, licensed or provided by third parties, including without limitation software that is subject to open source licenses (“Third Party Services”). Privy is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Developer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Developer Data or other information relating thereto) and Developer agrees to comply with all applicable terms governing use of Third Party Services. Privy does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Developer and a third party provider is solely between Developer and such third party provider and is governed by such third party’s terms and conditions.

11. Term; Termination

This Agreement shall commence upon Developer’s use of the Services until termination in accordance herewith (“Term”). The Term consists of successive one (1) month periods unless and until either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the then-current calendar month, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Privy may suspend or limit Developer’s access to or use of the Services if (A) Developer’s account is more than five (5) days past due for any fees, or (B) Developer’s use of the Services results in (or is reasonably likely to result in) damage to or degradation of the Services. If Developer is subject to insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts, dissolves or becomes insolvent, or ceases to conduct its business, Users may be able to retrieve their Wallets via a Privy-hosted feature, but Privy makes no representations as to its ability to retrieve Wallets and hereby disclaims all liabilities with respect thereto, except with respect to providing availability to Privy Wallet Shard. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by Privy to Developer, including the data export set out above, and any assistance in exporting the Developer Data, shall be billable at Privy’s standard rates then in effect.

12. Representations and Warranties

Each party represents and warrants to the other party that: (i) it is duly incorporated or formed, validly existing and in good standing under the laws of the country, province or state in which it is incorporated or formed; (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder; and (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms.

13. Indemnification

Developer shall defend, indemnify, and hold harmless Privy, its affiliates and its employees, contractors, directors, suppliers and representatives  from all liabilities, claims, and expenses (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that relates to (I) Developer’s gross negligence or willful misconduct; (II) Developer’s breach of any term or provision of these Terms; or (III) a Delegated Action or Server Wallet configured or implemented by Developer.  In case of an indemnified claim, Developer agrees to provide Privy with: (A) the option to assume sole control over the defense and settlement of any claim; and (B) reasonable information and assistance in connection with such defense and settlement (at Developer’s expense).  Additionally, Developer shall defend, indemnify, and hold harmless Privy, its affiliates and its affiliates’ employees, contractors, directors, suppliers and representatives from all Losses that arise from or relate to Developer’s or Users’ acts or omissions that jeopardize the accessibility and security of Wallets offered or provisioned by Privy, including from lost or compromised Credentials or corrupt Wallet files.

14. Disclaimer

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

15. Limitation of Liability

IN NO EVENT SHALL PRIVY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) THIRD-PARTY SOFTWARE USED WITH THE SERVICES, OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY DEVELOPER TO PRIVY HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

16. Arbitration Agreement

Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered in accordance with the Commercial Arbitration Rules and Procedures of American Arbitration Association (“AAA”), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law from any court of competent jurisdiction.  DEVELOPER HEREBY WAIVES ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Developer and Privy are instead choosing to have claims and disputes resolved by arbitration. In any litigation between Developer and Privy over whether to vacate or enforce an arbitration award, DEVELOPER AND PRIVY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF ARBITRATION MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE DEVELOPER OR USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER DEVELOPER OR USER. The prevailing party in an arbitration will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award.  The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. The seat of the arbitration shall be New York, New York. The language of the arbitration shall be English.

17. Miscellaneous

This Agreement represents the entire agreement between Developer and Privy with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Developer and Privy with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if transmitted by e-mail or otherwise provided in writing. Either party may update its contact information by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of Services attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s prior written consent; provided that either party may assign this Agreement without the other party’s prior written consent in connection with a merger, acquisition, change of control or sale of all or substantially all of its assets. Developer acknowledges that Privy may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.