API AGREEMENT
Exhibit 6.3
THIS API AGREEMENT, dated as of
_________ __, 2020 (this "Agreement"), is made by and between
PROPER TRUST AG, a Swiss corporation located in the Canton of Zug ("Swiss Sub"), and [NAME OF PROVIDER], a ______________ corporation d/b/a _____________ ("Provider").
RECITALS
A. Swiss Sub is a wholly-owned
subsidiary of Exodus Movement, Inc., a Delaware corporation ("Exodus US"). Exodus US is a software company that has developed the Exodus Wallet (the "Exodus Unhosted Wallet"), which is an unhosted and non-custodial software wallet for multiple types of cryptocurrencies and cryptographic assets (collectively, "crypto assets"). The Exodus Unhosted Wallet can currently be downloaded from the xxxxxx.xx website, the iOS app store, and the Google Play store.
B. Provider currently provides
software services to permit a user of an unhosted and non-custodial crypto asset software wallet to exchange one crypto asset for another crypto asset (the "Services").
Provider provides an application program interface to permit the Services to be accessible for users of unhosted wallet software (the "API").
C. Swiss Sub and Provider
desire, under the terms and conditions of this Agreement, to integrate the API into the Exodus Unhosted Wallet, solely with respect to users of the Exodus Unhosted Wallet who are located outside of the United States and its territories.
AGREEMENT
NOW, THEREFORE, in consideration of
the recitals, mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Term and Termination.
(a) Term. The
term of this Agreement shall commence on the date of this Agreement and shall continue until the date of termination of this Agreement in accordance with Section 1(b)
(the "Term").
(b) Termination.
(i) This
Agreement may be terminated for any reason by any party upon at least seven (7) days advance written notice to the other party.
(ii) This
Agreement may be immediately terminated by either party in the event of (i) a breach in the terms of this Agreement that goes uncured for seven (7) days after written notice has been provided to the breaching party of such breach, (ii) grossly
negligent, reckless or willful misconduct of the other party, (iii) the violation of any applicable law or regulation by the other party, (iv) the insolvency, bankruptcy or receivership of any party, or (v) in the event that the Services are
prohibited by any applicable regulatory authority, statute or regulation.
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(c) Effect of Termination. Provider will pay to Swiss Sub all API Integration Fees (as defined in Section 3(b)(i)) due under this Agreement but not yet paid as of
the date of such termination, based upon Transactions (as defined in Section 3(b)(iv)) performed by Provider. Termination of this Agreement by any party
shall not act as a waiver of any breach of this Agreement and shall not act as a release of any party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other for damages of any
kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party shall be without prejudice to any other right or remedy of such party under this Agreement or applicable law.
Section 2. Duties; Representations and Warranties.
(a) Duties of Swiss Sub. During the Term of this Agreement, Swiss Sub shall promptly respond to any inquiries from Provider with respect to the integration of the API in the Exodus Unhosted Wallet. Swiss Sub is under no obligation to utilize the API
in the Exodus Unhosted Wallet, nor require, request or encourage any User (as defined in Section 3(b)(v)) to utilize the API in the Exodus Unhosted Wallet,
during the Term of this Agreement. In integrating the API into the Exodus Unhosted Wallet, Swiss Sub shall comply with all applicable statutes, regulations, and published guidance from any applicable regulatory authority.
(b) Duties of Provider. During the Term of this Agreement, Provider shall provide the API to Swiss Sub and Exodus US to permit the Services to be incorporated into the Exodus Unhosted Wallet, solely with respect to users of the Exodus Unhosted Wallet
located outside of the United States and its territories. Provider shall promptly respond to any inquiries from Swiss Sub with respect to the API and Services. Provider shall implement systems and procedures to ensure that, subject to the
restrictions of applicable laws and regulations, any User of the Services have their Transactions promptly (i) accepted and completed or (ii) rejected and refunded. In providing the API and the Services, Provider shall comply with all applicable
statutes, regulations, and published guidance from any applicable regulatory authority.
(c) Representations of Swiss Sub. Swiss Sub represents and warrants to Provider that (i) Swiss Sub is a
wholly-owned subsidiary of Exodus US, (ii) Swiss Sub is organized, validly existing and in good standing under the laws of Switzerland, with all requisite power and authority to enter into this Agreement and conduct its business as it is now being
conducted; (iii) the names and titles of the directors, executive officers, and shareholders that own at least 10% of shares of voting equity of Exodus US, as of the date of this Agreement, are attached as Appendix 1; (iv) Exodus US and Swiss Sub are not identified on any
sanctions list maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), including the Specially Designated Nationals
and Blocked Persons List, Foreign Sanctions Evaders List, and the Sectoral Sanctions Identifications List (collectively, the "OFAC Lists"); (v) no director,
officer, employee, or holder of equity or debt securities of Exodus US or Swiss Sub is identified on, or is 50% or more owned, directly or indirectly, by any party identified on, any of the OFAC Lists; (vi) Swiss Sub has implemented sanctions
compliance procedures reasonably designed to ensure compliance with OFAC sanctions regulations and the sanctions requirements of the Swiss State Secretariat for Economic Affairs ("SECO"); (vii) Swiss Sub has all licenses, franchises, permits and other governmental authorizations that are legally required to enable it to conduct its business as presently conducted in all material respects; and (viii)
copy of the Articles of Association of Swiss Sub, as currently in full force and effect, is attached as Appendix 3.
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(d) Representations of Provider. Provider represents and warrants to Swiss Sub that (i) Provider is organized,
validly existing and in good standing under the laws of ____________, with all requisite power and authority to enter into this Agreement and conduct its business as it is now being conducted, (ii) the names and titles of the directors, executive
officers, and shareholders that own at least 10% of shares of voting equity of Provider, as of the date of this Agreement, are attached as Appendix 2;
(iii) Provider is not identified on any of the OFAC Lists; (iv) no director, officer, employee, or holder of equity or debt securities of Provider is identified on, or is 50% or more owned, directly or indirectly, by any party that is
identified on any of the OFAC Lists, (v) Provider will comply with all applicable sanctions and export control laws and will not provide the Services under this Agreement to any parties that, at the time such Services are provided, are (A) located
or resident in any country or territory that is subject to a U.S. trade embargo or other applicable sanctions prohibiting such services, including but not limited to, the Crimea region of Ukraine, Cuba, Iran, North Korea, and Syria or (B)
identified on any of the OFAC Lists or other applicable sanctions list prohibiting such services; (vi) Provider has implemented sanctions compliance procedures reasonably designed to ensure compliance with OFAC sanctions regulations and other
applicable sanctions laws; (vii) Provider has all licenses, franchises, permits and other governmental authorizations that are legally required to enable it to conduct its business as presently conducted in all material respects; and (viii) a copy
of the Articles of Incorporation of Provider, as currently in full force and effect, is attached as Appendix 4.
(e) Independent Contractor Relationship. The relationship between the parties to this Agreement shall be that of independent contractors. Nothing in this Agreement shall be construed to create the relationship of employer and employee, a joint venture, a
partnership, or joint association between the parties to this Agreement and or any of their respective affiliates. Swiss Sub shall solely be responsible for the payment of income taxes applicable to the compensation received from Provider under Section 3.
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Section 3. API Integration Fee to Exodus.
(a) API Integration Fee. In consideration for the integration by Swiss Sub and Exodus US of the API into the Exodus Unhosted Wallet software, Provider shall pay to Swiss Sub an API Integration Fee (as defined in Section 3(b)(i)) for each Transaction (as defined in Section 3(b)(iv)). Provider shall
provide Swiss Sub with a software interface to (i) view the accrual of the API Integration Fees on a real-time basis and (ii) permit Swiss Sub to receive payment, in BTC, for any accrued API Integration Fees, no later than two (2) days after the
date of completion of the corresponding Transactions.
(b) Definitions.
(i) "API Integration Fee" means, for each Transaction, an amount equal to (x) 0.02 multiplied by (y) the Initial BTC Value.
(ii) "BTC" means Bitcoin cryptocurrency.
(iii) "Initial BTC Value" means the value, in BTC, of a crypto asset sent to Provider by a User, at the time the crypto asset was received by Provider from such User.
(iv) "Transaction" means a transaction of Services between Provider and a User, effected through the API, in which (i) User sends a crypto asset from User's Exodus
Unhosted Wallet to Provider, and (ii) Provider sends, in response, a different type of crypto asset to User's Exodus Unhosted Wallet.
(v) "User" means a user of the Services of Provider through the API in the Exodus Unhosted Wallet.
Section 4. Intellectual Property Rights
(a) License to Use API In Exodus Unhosted Wallet. Subject to the terms and conditions of this Agreement,
Provider grants to Swiss Sub and Exodus US a limited, royalty-free, paid-up, worldwide, non-exclusive, and non-transferable license, during the Term of this Agreement, to (i) execute and use the API in the Exodus Unhosted Wallet software
application and (ii) use Provider's copyrighted work embodied in the API.
(b) Swiss Sub - Retention of Rights. Swiss Sub and Exodus US reserve all rights, title, and interest in and to
any materials produced by Swiss Sub or Exodus US, including, without limitation, all patent rights, copyrights, trademarks, trade secrets, and all other intellectual property rights. Swiss Sub and Exodus US shall retain all right, title and
interest in the Exodus Unhosted Wallet, and shall own all improvements thereon that are developed by Swiss Sub or Exodus US in connection with this Agreement. Provider shall not acquire any rights, title, or interest, express or implied, to the
Exodus Unhosted Wallet or any other software or service produced by Swiss Sub or Exodus US, nor to any derivative works, modifications, enhancements, improvements, translations or other alterations thereto, and nothing in this Agreement shall be
deemed to grant Provider any right, title or interest in the Exodus Unhosted Wallet, nor to any derivative works, modifications, enhancements, improvements, translations or other alterations thereto (“Exodus Derivative Works”). To the extent any assignment is necessary to evidence the intent of this section, Provider agrees to assign to Swiss Sub or Exodus US, as applicable, all of its right,
title and interest in and to such Exodus Derivative Works, and any part thereof, and in and to all copyrights, patents, and other proprietary rights Provider may have in such Exodus Derivative Works.
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(c) Provider - Retention of Rights. Provider reserves all rights, title, and interest in and to any materials
produced by Provider including, without limitation, all patent rights, copyrights, trademarks, trade secrets, and all other intellectual property rights. Provider shall retain all right, title and interest in the API, and shall own all
improvements thereon that are developed by Provider in connection with this Agreement. Other than the license granted during the Term of this Agreement, as set forth in Section
4(a), Swiss Sub and Exodus US shall not acquire any rights, title, or interest, express or implied, to the API or any software or service produced by Provider, and nothing in this Agreement shall be deemed to grant Swiss Sub or
Exodus US any right, title or interest in the API, nor to any derivative works, modifications, enhancements, improvements, translations or other alterations thereto (“Provider
Derivative Works”). To the extent any assignment is necessary to evidence the intent of this section, Swiss Sub and Exodus US, as applicable, agree to assign to Provider all of its right, title, and interest in and to such Provider
Derivative Works, and any part thereof, and in and to all copyrights, patents and other proprietary rights they may have in such Provider Derivative Works.
Section 5. Confidentiality
(a) General. The Receiving Party (as defined in Section 5(b)(iii)) shall not disclose any Confidential Information (as defined in Section 5(b)(i)) to any party other than to
the Representatives (as defined in Section 5(b)(iv)) of the Receiving Party who have a specific need to know the information in connection with the terms
and conditions of this Agreement. If the Receiving Party is required by law, court order, or governmental authority to produce Confidential Information of the Disclosing Party (as defined in Section 5(b)(ii)), the Receiving Party must immediately notify the Disclosing Party of that obligation prior to its disclosure, unless such notification is prohibited by applicable law.
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(b) Definitions.
(i) "Confidential Information" means any information (whether oral, written, electronic or otherwise) provided by the Disclosing Party to the Receiving Party that (A)
relates to the Disclosing Party's business, (B) is not known generally to the industry in which the Disclosing Party may be engaged, and (C) is not otherwise generally available to the public. Confidential Information includes, but is not limited
to, any and all of the Disclosing Party's intellectual property (including, but not limited to, patents, trademarks and copyrights), trade secrets, proprietary data or information relating to past present or future business and products; price
lists, customer lists, customer addresses, customer telephone numbers and customer files; information pertaining to processes, procedures or standards; manuals, business strategies, records, drawings, specifications, or designs; financial
information, whether or not in writing; and any other information or data which the Disclosing Party advises the Receiving Party in writing to be treated as confidential information. Confidential Information does not include information that (I)
is or becomes publicly available other than as a result of a disclosure by the Receiving Party or the Receiving Party's employees, (II) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the
Disclosing Party) that, to the best of the Receiving Party's knowledge after due inquiry, is not prohibited from disclosing such information to the Receiving Party by a legal, contractual or fiduciary obligation to the Disclosing Party, (III) is
independently developed by the Receiving Party without use of the Confidential Information, or (IV) is already known by the Receiving Party at the time of this Agreement.
(ii) “Disclosing Party” means any party to this Agreement who discloses information to the other party to this Agreement.
(iii) “Receiving Party” means any party to this Agreement who receives information from the other party to this Agreement.
(iv) "Representatives" means a party’s directors, officers, employees, attorneys, accountants, financial advisors, and consultants.
Section 6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY SWISS LAW, NO PARTY TO THIS AGREEMENT WILL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT
LIMITATION, LOST REVENUES OR PROFITS, LOSS OF USE, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY, BUT EXCLUDING GROSS NEGLIGENCE AND WILLFUL INTENT)
ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
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Section 7. Miscellaneous.
(a) Notices. All notices, requests, demands or other communications hereunder shall be in writing and shall be
deemed to have been duly given (i) when personally delivered, (ii) if sent by e-mail, on the date that the e-mail is received by the recipient in legible form or (iii) if sent by international delivery service, on the Business Day that it is
delivered or its delivery is attempted, in any case addressed to the parties at the following addresses or at such other address as shall be given in like manner by any party to the other:
If to Swiss Sub:
Mr. Xxx Xxxx Xxxxxxxxxx
Director
Proper Trust AG
c/o LacMont XX
Xxxxxx + Xxx Xxxxxxx 0
0000 Xxx, Xxxxxxx
E-MAIL: xx@xxxxxx.xx
If to Provider:
[Name]
[Title]
[Name of Provider]
[Address]
E-MAIL: ___________________
(b) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of
Switzerland, without reference to conflicts of laws principles thereof. Any disputes arising from or relating to this Agreement not amicably reconciled shall be subject to the exclusive subject matter jurisdiction of xxx xxxxxxxxx xxxxx xx Xxx,
Xxxxxxxxxxx. Each party hereby waives trial by jury in any court action or proceeding to which they may be parties, arising out of, in connection with or in any way pertaining to, this Agreement.
(c) Entire Agreement; Termination of Prior Agreements. This Agreement contains the entire understanding of the
parties with respect to activities contemplated by this Agreement. This Agreement supersedes and terminates all prior agreements and understandings between the parties to this Agreement, whether written or oral.
(d) Survival. Sections 1(c), 2(e), 4, 5, 6 and 7 shall survive the termination of this Agreement.
(e) Miscellaneous.
This Agreement may not be assigned by any party without the written consent of all of the parties hereto. Except as otherwise expressly provided herein, all of the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and permitted assigns of the parties hereto. If any provision of this Agreement is held invalid or unenforceable in accordance with its express terms in any legal proceeding,
such invalidity or unenforceability shall not affect the validity and enforceability of any other part of this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one agreement which is binding upon all parties hereto, notwithstanding that all parties are not signatories to the same counterpart. This Agreement may be executed by electronic, facsimile or scanned signatures
which shall be deemed to have the same force and effect as an original signature. This Agreement may be amended only by a written agreement signed by all of the parties hereto.
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IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed and delivered on the date first above written.
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PROPER TRUST AG
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[NAME OF PROVIDER]
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By:
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By:
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Xxx Xxxx Xxxxxxxxxx
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[Name]
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Director
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[Title]
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(Signature Page to API Agreement)
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Appendix 1
List of Directors, Executive Officers and
Significant Shareholders (holding at least 10% of voting equity shares)
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DIRECTORS AND EXECUTIVE OFFICERS
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Title
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Name
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Director
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Xxx Xxxx Xxxxxxxxxx
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Director
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Xxxxxx Xxxxx Xxxxxxxxxx
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Chief Executive Officer
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Xxx Xxxx Xxxxxxxxxx
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President
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Xxxxxx Xxxxx Xxxxxxxxxx
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Chief Financial Officer and Secretary
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Xxxxx Xxxxxxxxx
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Chief Operating Officer
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Xxxxxxxxx Xxxxx
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SHAREHOLDERS HOLDING AT LEAST 10% OF VOTING EQUITY SHARES
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Name of Shareholder
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Xxx Xxxx Xxxxxxxxxx
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Xxxxxx Xxxxx Xxxxxxxxxx
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Appendix 2
[Name of Provider]
List of Directors, Executive Officers and
Significant Shareholders (holding at least 10% of voting equity shares)
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DIRECTORS AND EXECUTIVE OFFICERS
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Title
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Name
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SHAREHOLDERS HOLDING AT LEAST 10% OF VOTING EQUITY SHARES
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Name of Shareholder
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Appendix 3
Articles of Association of
Proper Trust AG
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Appendix 4
Articles of Incorporation of
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