FINTECH SANDBOX STARTUP AGREEMENT
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE (“ACCEPTANCE”) OF THIS STARTUP AGREEMENT (“AGREEMENT”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH ENTITY AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PROGRAM BENEFITS (AS DEFINED BELOW).
This Agreement by and between The FinTech Sandbox, Inc. (“FinTech Sandbox”, “we” or “us”) and you is effective as of the date of Acceptance (the “Effective Date”) and governs your participation in the FinTech Sandbox Startup Program (“Program”) during the Program’s six-month term (“Term”), which commences on the date you are formally admitted into the Program by FinTech Sandbox.
1. Program Benefits. During the Term (as defined below), and subject to change or discontinuance upon thirty (30) calendar days e-mail or written notice from us, FinTech Sandbox may provide the following program benefits (“Program Benefits”) to you at no charge or at a discounted rate:
- Data, infrastructure and services. We may facilitate your access to data, infrastructure and/or services from third-party providers. You will enter into agreements with such third-party providers directly. You acknowledge that we are not recommending or endorsing any such third-party providers, or the data, infrastructure and/or services received from such third-party providers. FinTech Sandbox will not be deemed a party to any relationships you establish with such providers. You acknowledge that FinTech Sandbox cannot be liable for any data, infrastructure and/or services you may choose to obtain from such providers, regardless of whether FinTech Sandbox has directly or indirectly funded or facilitated such services.
- Introductions. We may introduce you to potential customers and third party professionals, including bankers, mentors, business consultants, lawyers, accountants or employee recruiters. We may also directly or indirectly facilitate introductions to potential employee candidates. You acknowledge that we are not recommending or endorsing any such third parties or employee candidates. FinTech Sandbox will not be deemed a party to any relationships you establish with such parties. You acknowledge that FinTech Sandbox cannot be liable for any services you may choose to obtain from such parties, regardless of whether FinTech Sandbox has directly or indirectly funded or facilitated such services.
- Office space. We may provide you with limited shared office space during the Term, for the sole purpose of participating in the Program. You will comply with all physical, security and other requirements communicated to you in relation to the office space. You agree that you (and each of your employees and/or contractors granted access to the office space) will abide by any code of conduct and limitations on access to restricted areas applicable to the particular office space that are communicated to you by us or the office space management. You agree to comply with all applicable laws, including immigration laws and laws prohibiting harassment in the workplace, in using the office space. Your use of the office space is under a license, not a lease. You also agree that we and our vendors are not responsible for any loss, damage, theft, or disappearance of any of your property brought into the office space.
- Office equipment and services. We or our vendors may provide you with equipment and services, including office equipment, telecommunications services, Internet access, cloud hosting solutions and other services in our sole discretion (“equipment”). You will comply with any limitations or constraints communicated to you about using the equipment. You agree to: (a) assume the risk of, and take all reasonable precautions to protect any equipment against loss, damage, or theft; (b) take no actions which affect our title or interest in equipment; (c) abide by specifications and use instructions for equipment; and (d) not give access to the equipment to any third party without our prior written consent. We may also require you to sign separate agreements regarding access to equipment or FinTech Sandbox systems.
- Limited consulting services. FinTech Sandbox and its sponsors, agents and representatives may provide limited advice and suggestions to you regarding your business plans, architecture, features and performance of your products and services.
- Promotional events. FinTech Sandbox may host events and meetings in which you are given the opportunity to demonstrate your products or services to potential investors, customers and partners.
2. Your Participation.
- Your participation in the Program is conditioned on your compliance with this Agreement and in any other requirements, policies or documentation that may be provided by FinTech Sandbox to you prior to the Effective Date or during the Term.
- You agree to abide by the terms of the agreements of any third party providers with whom you contract directly, regardless of whether FinTech Sandbox has directly or indirectly facilitated such agreements.
- If FinTech Sandbox provides any additional marketing or promotional exposure for you, you agree to provide to FinTech Sandbox materials, artwork, and other information as required to enable us to conduct these promotional activities. You agree to cooperate with FinTech Sandbox to create additional FinTech Sandbox-owned marketing materials (e.g., case studies, articles, and videos) regarding your participation in the Program. You grant to FinTech Sandbox a nonexclusive, nontransferable, limited license to use your trademarks and services marks, trade dress, trade names, designs, slogans, domain names, logos, and other business identifiers, in order to publish, use, reference, and display your name and other information, including but not limited to quotes, names, or pictures of, related to, and about you. We will obtain your approval of marketing materials before their first public release, if any. Upon such an approval, we may use any of the content in any other materials.
- Neither party has any obligation to buy, use, market, or sell any of the other party’s products or services.
- “Confidential Information” means, subject to the exceptions set forth below, any information, data, or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the “Discloser”) to the other party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth below.
- Confidential Information shall not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known in the trade other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
- The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and shall never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees who are required to have access to such Confidential Information, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient shall use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
- In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient shall first give written notice of such requirement to the Discloser, and shall permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
4. Intellectual Property. We make no claim of any ownership in your work product resulting from our provision of Program Benefits to you. Each of us owns and retains all right, title and interest in and to our own respective products and services, including the underlying intellectual property. You acknowledge that FinTech Sandbox is not granting any licenses, covenants or other intellectual property rights whatsoever (by implication, exhaustion, estoppel or otherwise) as a result of your participation in the Program, or your implementation of any advice or suggestions from FinTech Sandbox. Such rights, if any, will be provided only upon execution of a separate written agreement between FinTech Sandbox and you. Neither of us intend any joint development activities under this Agreement, and both of us will endeavor to avoid the creation of joint intellectual property. In the event that we both desire to jointly create any technology, materials, papers, or intellectual property under this Agreement, we will enter into a separate written agreement.
5. Your representations and warranties. You represent and warrant that:
- You have the full right and power to enter into and perform according to the terms of this Agreement, and your performance will not violate any agreement or obligation between you and any third party. • At the time of your initial enrollment, and for the duration of your participation in the Program, you meet all the eligibility requirements communicated to you in writing prior to the Effective Date. You will immediately notify FinTech Sandbox if and when you become ineligible to participate in the Program.
- You are solely responsible for all claims, liabilities and damages arising from or in connection with your delivery of goods, software or services to your customers, including all customer support.
- You base your product or service offerings and marketing plans solely on your own independent research, analysis, and professional advisors. You acknowledge that you are not relying on any oral or written statements from FinTech Sandbox when making decisions regarding the development, manufacturing, business strategies or marketing plans of any your products or services. You acknowledge that you have sole and absolute discretion regarding whether you implement any advice provided by FinTech Sandbox, and you assume all risks associated with any implementation.
- You have not made any misrepresentations to us.
6. No representations by FinTech Sandbox. FinTech Sandbox has not made any representation to you about the Program or Program Benefits on which you have relied in deciding to enter into this Agreement or participate in the Program. FinTech Sandbox’s delivery of Program Benefits under this Agreement are provided “AS IS” and without warranty of any kind. We do not represent or guarantee that you will achieve any particular level of success, or that you will receive any sort of funding as a result of your participation in the Program. FinTech Sandbox disclaims on its own behalf and on behalf of its affiliates and suppliers all other representations, warranties, and conditions, whether express, implied or statutory.
7. Limitations on liability and exclusions of remedies. Neither party will be liable to the other for any loss (whether direct or indirect), including but not limited to loss of profits, data, business or anticipated savings, or due to business interruption. Neither party can recover any damages, including direct, indirect, consequential, punitive, incidental or special damages arising out of or related to this Agreement (whether for Program Benefits, termination or otherwise). The only remedy that the parties may have for any claim arising out of or related to this Agreement is to terminate this Agreement. The terms of this section apply to the maximum extent permitted under applicable law regardless of the form or cause of action or the alleged basis of the claim (including negligence), even if either party knew or should have known about the possibility of the damages. Your and FinTech Sandbox’s total cumulative liability for loss or damage of any kind (including loss or damage caused by negligence), to the extent not excluded by this Agreement, is limited to five dollars US ($5.00). The terms of this paragraph do not apply to claims of fraudulent misrepresentation, infringement, misuse or misappropriation by one of us of the other’s intellectual property rights, or to breaches of the warranty and representation provisions of this Agreement. Any liability is reduced to the extent that the non-liable party or its agents caused or contributed to the loss or damage.
8. Term, Termination, and Expiration. This Agreement commences on the Effective Date and continues until terminated as set forth herein (the “Term”). You may end your participation in the Program, or terminate this Agreement, at any time upon written notice to us. We may terminate this Agreement for any reason upon thirty (30) days written notice to you, but may terminate your participation in the Program immediately if you breach any of the terms of this Agreement. Upon termination of this Agreement, your access to Program Benefits will end, and each party agrees to return all property owned by the other party upon request.
9. Survival. Sections 3, 4, 5, 6, 7, 8, 9, 10 and 11 will survive the termination of this Agreement.
10. Taxes. You are responsible for and must pay any and all taxes resulting from receipt of Program Benefits, including but not limited to all income, property, franchise, gross receipts, goods and services, excise, sales, use, value added and transaction taxes, or any other similar taxes. Taxes also include any duties, fees, tariffs, or other governmental charges or expenses. FinTech Sandbox is not liable for such taxes, and you will indemnify, defend and hold FinTech Sandbox harmless from any such taxes, claims, and costs (including legal fees) related to such taxes.
11. Compliance with laws. Any Program Benefits that you receive are subject to U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to any FinTech Sandbox service or technology you access as a benefit of the Program. You will, at your own expense, obtain all necessary government approvals and comply with all applicable local laws and regulations necessary for your performance under this Agreement.
12. Notices. All notices and requests to either party in connection with this Agreement will be sent to the other party in writing. Notices will be considered delivered on the date shown on the confirmation of delivery.
13. Relationship between the parties. You and FinTech Sandbox are independent contractors. Nothing in this Agreement creates any employment relationship, partnership, joint venture, or agency relationship between FinTech Sandbox and you or your personnel. You have no power to represent or bind FinTech Sandbox in relation to any customers or other third parties. You will remain responsible for complying with all employment-related laws and for all of your personnel’s activities, expenses, salary and other compensation, taxation, statutory and other benefits at all times. You are responsible for communicating the terms of this Agreement to your employees and contractors, and ensuring their compliance with its terms. You must not make any representation or warranty about any FinTech Sandbox product or service to any of your customers or other third parties on FinTech Sandbox’s behalf.
14. Applicable law and venue; attorney’s fees. This Agreement is governed by the laws of the Commonwealth of Massachusetts, and the parties consent to exclusive jurisdiction and venue in the courts sitting in Boston, Massachusetts. You waive all defenses of lack of personal jurisdiction and forum non conveniens. The choice of jurisdiction and venue does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement of recognition of any award or order in any appropriate jurisdiction. If either party commences litigation in connection with this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses.
15. Entire agreement, changes. The terms and conditions of this Agreement form the entire agreement between FinTech Sandbox and you concerning the Program. They replace all oral or written prior or contemporaneous agreements and communications between you and FinTech Sandbox or its affiliates relating to the Program. This Agreement can only be changed by an amendment signed by both parties, but FinTech Sandbox may change the Program with respect to program administration, policies, procedures, guidelines, benefits and similar changes. You may not assign this Agreement or any rights under it without our prior written consent. Any assignment or attempted assignment by you otherwise than in accordance with this Section shall be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
16. Severability. The terms and conditions of this Agreement are severable. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
17. No waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.