Master Services Agreement
Last updated September 2, 2022
This Master Services Agreement (the “Agreement”), as revised or amended from time to time, is entered into by and between you (“Provider”) and dYdX Trading Inc., a Delaware corporation (“Customer”, together with Provider, the “parties”), and is acknowledged and agreed to by the parties at the first to occur of the full execution of this Agreement or its Statement of Work, or your receipt and acceptance of any payment in exchange for performance of the Services (as defined below) (“Effective Date”).
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Services. During the Term, Provider will use commercially reasonable efforts to provide to Customer the services (the “Services”) set forth in (a) Exhibit A, (b) one (1) or more statements of work between Customer and Provider or (c) any agreement that incorporates the terms of this Agreement by reference (each, a “SOW”), in each case, in accordance with the terms and conditions hereof. Customer may request changes to the scope of the Services by submitting a written proposal to Provider, which will promptly accept or reject such proposal in writing (and such acceptance must not be unreasonably withheld or delayed).
Fees; Payment Terms.
Fees. Customer will pay Provider the fees set forth in the SOW (“Fees”).
Taxes. All Fees and other amounts payable by Customer under this Agreement are inclusive of taxes and similar assessments. Provider is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by either party hereunder.
Term and Termination.
Term. Unless otherwise set forth in any SOW, the term of this Agreement commences on the Effective Date and, unless terminated earlier pursuant to any of the express provisions of this Agreement or any SOWs, will continue in force in perpetuity (the “Term”). Time is of the essence in the completion of any Services under this Agreement.
Termination. Unless otherwise set forth in any SOW, either party may terminate this Agreement at any time, with or without cause, upon fifteen (15) days’ written notice.
Surviving Terms. Section 4 through Section 7 and any other right or obligation of the parties in this Agreement or any SOWs that, by its nature, should survive termination, expiration or assignment of this Agreement, will survive any expiration, termination or assignment of this Agreement.
Representations and Warranties.
Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
Additional Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that (a) Provider will provide the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, including providing personnel who are experienced, properly trained fully qualified and fit for their respective assignments, and will devote adequate resources, including furnishing all appropriate and adequate equipment and materials, to meet its obligations under this Agreement; (b) Provider, and to its knowledge, its directors, officers, employees, agents, affiliates or representatives, is not, and are not, owned or controlled by a person that (i) is the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“Sanctions”); (ii) is located, organized or resident in a country or territory that is the subject of Sanctions; and (c) Provider, and to its knowledge, its directors, officers, employees, agents, affiliates or representatives, is not, and are not, owned or controlled by a person that, and any immediate family relation of any of the foregoing persons, as applicable, is not a foreign government official.
Insurance. During the Term, Provider must secure and maintain in full force and effect insurance of such types and in such amounts (a) as may be necessary to protect the parties against all hazards or risks of loss that may arise out of the performance of this Agreement and (b) in accordance with the requirements provided by Customer in writing but no less than generally recognized industry standards for similar services. Prior to commencement of the Services, or upon request by Customer, Provider will deliver to Customer a certificate of such insurance. Financial failure of any insurer will not relieve Provider of its indemnity obligations and liabilities under this Agreement. Provider will name Customer and any other persons provided by Customer in writing as additional insured in such insurance.
Indemnification. Provider will indemnify, defend and hold harmless Customer and its affiliates and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Customer Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers incurred by such Customer Indemnitee arising out of or relating to (a) any claim, suit, action or proceeding by any third party alleging that the Services infringes intellectual property rights held by any third party; (b) Provider’s breach of its warranties, obligations and undertakings under this Agreement; (c) a third party claim, suit or proceeding alleging that any service provider or contractor of Provider is an employee of or supplier of work to Customer as a result or in connection with the Services; (d) Provider’s failure to comply with Provider’s obligations under any and all laws, rules or regulations applicable to Provider or the Services; or (e) negligence or more culpable act or omission (including bad faith, fraud, recklessness or willful misconduct) by Provider or any third party on behalf of Provider in connection with this Agreement.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
Notices. Provider will provide all notices, requests, consents, claims, demands, waivers and other communications (“Notices”) under this Agreement to email@example.com, and Customer will provide all Notices to the Provider (a) at the last email address provided to Customer in writing; (b) via the Telegram channel last used between Customer and Provider; or (c) by posting on the Site. The foregoing are the only effective channels for providing Notice and all other forms of Notice will be ineffective for purposes of this Agreement. Notices will be effective when sent.
Entire Agreement. This Agreement and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
Assignment. Except as expressly permitted by the terms hereof, neither this Agreement nor any of the rights, interests or obligations hereunder can be assigned by any of the parties without the prior written consent of the other party; provided, however, that a party may, without obtaining the prior written consent of the other party, assign any of its rights, or delegate any of its obligations under this Agreement in connection with the sale of all or substantially all of its assets to which this Agreement relates (whether by sale, merger, reorganization, consolidation or otherwise). Any attempted assignment in violation of this section will be null and void.
Amendment and Modification; Waiver. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by each party. Notwithstanding the foregoing, Customer may, in its sole discretion, amend this Agreement at any time with notice, including by updating the “Last Updated” date at the top of this Agreement. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any dispute, claim or controversy arising out of or relating to this Agreement will be determined by arbitration in the Delaware. The arbitration will be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. An electronically signed copy of this Agreement delivered by electronic mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Interpretation. Except to the extent otherwise provided or unless the context otherwise requires, for the purposes of this Agreement: (a) references made in this Agreement to a Section or Exhibit are references to a section or exhibit of this Agreement; (b) the headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement; (c) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”; and (d) the use of “or” is not intended to be exclusive. The preamble to this Agreement is incorporated herein by reference and made a part of this Agreement.