Part F - Definitions
Effective as of 31 January 2022
This Part applies to all Members.
As used in this Agreement, the following terms have the following meanings unless the context otherwise requires (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Adaptations and Modifications” means, with respect to any Intellectual Property, all derivative works thereof, developments therefrom or
improvements or enhancements thereto. The term “Adapt and Modify” shall mean to make, have made, and create derivative works, improvements, and enhancements.
“Affiliate” means, with respect to any Person at any time, any other Person directly or indirectly Controlling, Controlled by, or under common
Control with, such Person at such time. A Person shall be deemed to “Control” another Person if such Person possesses the power to direct or cause the direction of the management or policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” means all Parts of this Agreement that apply to the Member, including any applicable Hosting Schedules, Product Schedules, any validly executed Order Forms and completed Contour Identity Applications.
“Agreement Term” has the meaning set forth in Clause 3.1 of Part A.
“Applicable Law” means, with respect to any Person, any and all (a) laws, ordinances, or regulations, (b) codes, standards, rules,
requirements, orders and criteria issued under any laws, ordinances or regulations, (c) rules of any securities exchange or equivalent and (d) any and all judgments, orders, writs, directives, authorisations, rulings, decisions, injunctions, decrees, assessments, settlement agreements, or awards of any Governmental Authority, in each case applicable to such Person or its business or properties.
“Approval” has the meaning set forth in Clause 26.1 of Part A.
“Arbitration Rules” has the meaning set forth in Clause 24.2.1 of Part A.
“Associated Parties” has the meaning set forth in Clause 22.1 of Part A.
“Auditors” has the meaning set forth in Clause 16.1.3 of Part A.
“Award” has the meaning set forth in Clause 24.2.3 of Part A.
“Billing Data” has the meaning set forth in Clause 18.1.2(b) of Part A.
“Business Day” means any day except (a) a Saturday or a Sunday, or (b) any other day on which commercial banking institutions in Singapore are authorised or directed by Applicable Law to close.
“Cloud Member” means the category of user selected by the Member in the Order Form.
“Cloud Provider” means the Third Party(s) cloud or infrastructure provider(s) engaged by Contour to host User Node(s) for the benefit of the Cloud Member, as specified at https://contour.network/privacy-policy/data-intermediaries/.
“Cloud Service Level Default” has the meaning set forth in Clause 1.4 of Schedule 2 of Part B.
“Cloud Service Levels” means the service levels applicable to the Cloud Services set out in the ‘Production Service Level Agreements –
Support Policy’ section of the Support Handbook.
“Cloud Services” has the meaning set forth in Clause 1.1 of Schedule 2 of Part B.
“Commercially Reasonable Efforts” means taking such steps and performing in such a manner as a well-managed company would undertake where such company was acting in a determined, prudent and reasonable manner to achieve the particular result for its own benefit.
“Confidential Information” has the meaning set forth in Clause 21.2 of Part A.
“Contour” has the meaning set forth in the Preamble.
“CNS Agreement” means the current agreement between Contour and R3 to provide the Corda Network Services, as amended from time to time.
“Contour Application” means the new block-chain based software application for the digitisation of trade and trade finance developed by
Contour (as that software application may be updated, changed or enhanced from time to time by Contour, and including all Upgrades).
“Contour Application Documentation” means all design, operating, installation, set-up and user documentation relating to the Contour
Application that is provided or made available by Contour, and updated from time to time at http://docs.contour.network.
“Contour Application Licence” has the meaning set forth in Clause 5.1 of Part A.
“Contour Application Support Services” means the services set out in the ‘Support Policy’ section of the Support Handbook.
“Contour Branding” means Contour’s proprietary branding and logos specified at https://www.contour.network/brand-guidelines.
“Contour Identity” means a unique identifier used to identify the Member on the Platform and the associated public key used by the Member to sign transactions entered into with other members of the Platform.
“Contour Identity Application” means the Contour Identity Application annexed to each Order Form.
“Contour Indemnitee” means Contour, its Affiliates, and their respective officers, directors and employees.
“Contour IP” has the meaning set forth in Clause 19.1 of Part A.
“Copyleft Open-Source Software” means any Software that requires as a condition of use, modification and/or distribution of such Software that such Software or other Software incorporated into, derived from or distributed with such Software (i) be disclosed or distributed in Source Code form, (ii) be licensed for the purpose of making derivative works or (iii) be redistributable at no charge.
“Corda Enterprise” means the proprietary version of the financial-grade distributed ledger platform application designed for enterprise use by R3, as that application may be updated, changed or enhanced from time to time by Contour, and including all Upgrades.
“Corda Enterprise Documentation” means all design, operating and user documentation relating to Corda Enterprise that is provided by R3 via http://docs.corda.r3.com/ and http://docs.corda.r3.com/_static/corda-developer-site.pdf or such other address as is notified by Contour to the Member from time to time.
“Corda Enterprise SAAS Right” has the meaning set forth in Clause 3.2 of Part D.
“Corda Enterprise Sublicence” has the meaning set forth in Clause 2.2 of Part D.
“Corda Network” means the set of infrastructure, services, standards, policies, agreements and governance mechanisms which enable participants on the Corda Network to interact with each other.
“Corda Network Services” means access to the Corda Network and the services provided by R3 via Contour in accordance with the CNS Agreement.
“Disaster” means a sudden, unplanned event (including a Force Majeure Event) which materially adversely affects the provision of the Services.
“Disaster Recovery & Business Continuity Plan” has the meaning set forth in Clause 17.1 of Part A.
“Disclosing Party” has the meaning set forth in Clause 21.2 of Part A.
“Dispute” means any dispute, controversy or claim arising in any way out of or in connection with this Agreement (including, without limitation: (1) any contractual or non‑contractual rights, obligations or liabilities; and (2) any issue as to the existence, validity or termination of
“EAR” has the meaning set forth in Clause 23 of Part A.
“Feedback” has the meaning set forth in Clause 19.3 of Part A.
“Fees” means the fees set out in each Order Form and each Hosting Schedule and Product Schedule (including Schedule 1 of Part E) payable
by the Member under this Agreement.
“Force Majeure Event” means any action, event or occurrence outside the reasonable control of the party in question, including a riot, strike, other labour dispute (excluding labour disputes involving employees of the affected party), insurrection, terrorism, fire, severe weather, pandemic, other act of God, explosion, war, acts of public enemies, blockade, embargo or action of any Governmental Authority (other than any action of a Governmental Authority directed specifically to the affected party).
“Formal Notice” means
(a) a notice invoking, or relating to, dispute resolution or any litigation between the Parties;
(b) notices given in accordance with Clauses 10, 13, 14, 16.1.2 and 26.1 of Part A, Clause 9 of Schedule 1 of Part B and Clause 7 of Part D;
(c) notices given in connection with a Force Majeure Event pursuant to Clause 26.1 of Part A;
(d) a change to the contact details specified in Clause 26.3 of Part A;
(e) any other notices stated in this Agreement to be a Formal Notice; or
(f) any other types of notices to a Party which that Party notified to the other Party (using a Formal Notice) shall be considered a Formal Notice.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any supra-national authority or
other self-regulatory or quasi- governmental organisation exercising executive, legislative, judicial, regulatory or administrative functions or pertaining to government (including, in each case, any branch, department or official thereof).
“Harmful Code” means any Software intended to damage or interfere with the intended operation of IT Systems or Software (including by
rearranging, altering or erasing a Software program or data in whole or part or otherwise), or any device, method or token that permits the circumvention of any part of information technology security, including any computer viruses, worms, time bombs, logic bombs, Trojan horses, salamis, trap doors, backdoors, undocumented passwords, protect codes or other malicious computer instructions, or any devices or techniques that can, or are designed to, threaten, assault, vandalise, subvert, disrupt, damage, copy, misappropriate, disable or shutdown an IT System, a Software program, or any component thereof, including its security or user data.
“Hosting Schedule” means the Schedules for the hosting deployment for the Licensed Software set out in Part B.
“Insolvency Event” means one or more of the following events (or any event analogous to any of the following in any other jurisdiction) in relation to a Party:
(a) a Party is dissolved (other than pursuant to a consolidation, amalgamation or merger where the surviving entity expressly assumes all rights and obligations of the entity under this Agreement);
(b) a Party becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
(c) a Party makes a general assignment, arrangement or composition with or for the benefit of its creditors;
(d) a Party institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and the proceeding or petition:
(i) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or
(ii) is not dismissed, discharged, stayed or restrained in each case within thirty (30) days of the proceeding or petition (unless, where the Party is the Member, Contour determines, in its sole discretion, that the Member has demonstrated that the proceeding is without merit and nonetheless could not reasonably be dismissed, discharged, stayed or restrained within thirty (30) days);
(e) a Party has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
(f) a Party seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;
(g) a Party has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and the secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within thirty days thereafter;
(h) a Party causes or is subject to any event with respect to it which, under Applicable Law, has an analogous effect to any of the events specified in Clauses (a) through (g) above; or
(i) a Party takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
“Intellectual Property” means any intellectual property or similar proprietary rights in any jurisdiction, whether registered or unregistered, including such rights in and to:
(a) trademarks and pending trademark applications, trade dress, service marks, certification marks, logos, domain names, uniform resource locators, trade names and fictional business names, together with all translations, adaptations, derivations and combinations and like intellectual property rights, together with all goodwill associated with the foregoing;
(b) issued patents and pending patent applications, and any and all divisions, continuations, continuations-in-part, reissues, renewals, provisionals, continuing patent applications, re-examinations, and extensions thereof, any counterparts claiming priority therefrom, utility models, patents of importation/confirmation, certificates of invention, certificates of registration and like rights, inventions, invention disclosures, discoveries and improvements, whether or not patentable;
(c) works of authorship, copyrightable works (including Corda Enterprise and any Software) and all copyrights including all applications, registrations and renewals thereof, and all rights corresponding thereto, as well as database rights;
(d) trade secrets (including those trade secrets defined in the Uniform Trade Secrets Act promulgated by the U.S. National Conference of Commissioners on Uniform State Laws in 1979, as amended and under corresponding non-U.S. statutory and common law), business, technical and know-how information, non-public information, and confidential information and rights to limit the use or disclosure thereof by any Person;
(e) mask works; and
(f) moral rights.
“IT Systems” means, in relation to a Person, that Person’s information and communications technologies, including hardware, Software, networks and interfaces (in each case, whether owned by that Person or licensed or leased from a Third Party).
“Licensed Documentation” means the Contour Application Documentation and the Corda Enterprise Documentation.
“Licensed Materials” means the Licensed Documentation and the Licensed Software.
“Licensed Software” means the Contour Application and Corda Enterprise.
“Licences” means the Contour Application Licence, the Corda Enterprise Sublicence and/or the Corda Enterprise SAAS Right (as applicable, depending on the options selected by the Member in the Order Form).
“Losses” means any and all damages, losses, liabilities, settlements, costs, expenses or fines (including any reasonable attorney’s fees and legal costs).
“Member” means the entity identified as such in the Recitals.
“Member Affiliate Provisions” has the meaning set forth in Clause 4.1.1 of Part A.
“Member Data” has the meaning set forth in Clause 18.1 of Part A.
“Member Indemnitee” means the Member and its officers, directors and employees.
“Member Retained Obligation” has the meaning set forth in Clause 4.1.1 of Part A.
“Member Service Provider” means, in the case of a Self-Managed Member only:
(a) any cloud or infrastructure provider that hosts or manages a User Node for the benefit of the Member; or
(b) any third party agents, consultants, developers and other independent contractors that perform services for the Member in connection with the Services.
“Member Service Provider Agreements” has the meaning set forth in Clause 8.2 of Schedule 1 of Part B.
“New Version” means a version of a Software containing Adaptations and Modifications that constitute a change or upgrade in the Software’s functionality, which, in the case of the Contour Application and Corda Enterprise is indicated by a change in the release number to the left of the decimal point in its version number or another similar indication.
“Nominated Billing Entity” has the meaning set forth in Clause 9.2 of Part A.
“Non-Material Subcontracting” has the meaning set forth in Clause 25.2.3 of Part A.
“Object Code” means the executable version of a computer program resulting from the compilation, translation or processing of the Source Code by a computer into machine language or intermediate code, which is not convenient to human understanding of the program logic, but which is appropriate for execution or interpretation by a computer processor.
“Order Form” means a form completed in accordance with the template provided by Contour whereby the Member (or an Affiliate) has selected a quantity of Contour Identities, Licensed Software, Services and/or additional products to be purchased pursuant to this Agreement.
“Order Form Billing Date” means the date for billing of an Order Form as specified in the relevant Order Form.
“Order Form Effective Date” means the effective date of an Order Form as specified in the relevant Order Form.
“Order Form Term” has the meaning set forth in Clause 3.2.1 of Part A.
“Other Applicable Export Laws” has the meaning set forth in Clause 23 of Part A.
“Participation Certificate” means a digital certificate issued by an identity manager to a Sponsored Participant, which includes the Sponsored Participant’s identifying information and is digitally signed by the identity manager, and allows the Sponsored Participant to operate a node on the Corda Network.
“Party” and “Parties” have the meaning set forth in the Preamble.
“Patch” means an Adaptation or Modification to Software intended to correct bugs, problems or errors, or to remove or protect against harmful code, computer viruses, worms, time bombs, logic bombs, Trojan horses, salamis, trap doors, backdoors, undocumented passwords, protect codes or other malicious computer instructions, or any devices or techniques that can, or are designed to, threaten, assault, vandalize, subvert, disrupt, damage, copy, misappropriate, disable or shutdown an IT system, a Software program, or any component thereof, including its security or user data; including bug fixes, patches, hot fixes, and other revisions, so that the Software operates without reproducible failure and functions in material conformity with the specifications contained in the relevant documentation (which, in the case of the Licensed Software shall include the Licensed Documentation).
“Person” means a natural person, partnership, domestic or foreign limited partnership, domestic or foreign limited liability company, trust, estate, association, corporation, other legal entity, or Governmental Authority.
“Platform” has the meaning set forth in the Rulebook.
“Platform Documents” has the meaning set forth in Clause 19.1.1(c) of Part A.
“Pre-Approved Subcontractors” has the meaning set forth in Clause 25.2.2 of Part A.
“Product Schedule” means the Schedules for various products and services for the Platform set out in Part E.
“Public Official” means an officer or employee of: (a) a government (including its agencies and departments), (b) a government-owned or government-controlled entity, (c) a regulatory entity, (d) a public international organization, or (e) a political party, or any person acting in
an official capacity on behalf of (a) – (e) above.
“R3” means R3 LLC.
“R3 Agreement” means the agreement between Contour and R3 (as may be amended from time to time) under which Contour is permitted by R3 to grant a sub-licence and/or use right of Corda Enterprise to members of the Platform.
“R3 IP” has the meaning set forth in Clause 6.1 of Part D.
“Receiving Party” has the meaning set forth in Clause 21.2 of Part A.
“Regulation 428/2009” has the meaning set forth in Clause 23 of Part A.
“Regulator” means, in respect of a Person, any authority having regulatory or supervisory authority over any part of the that Party’s business.
“Regulatory Requirements” mean all Applicable Laws and statutory and/or regulatory requirements (including the rules and construction thereof issued by any Regulator) that are applicable to a Person.
“Relevant IP” means the Contour IP and the R3 IP.
“Relief Event” means (i) any breach by the Member of its obligations under this Agreement; (ii) any act or omission that was taken by the Contour as a result of a specific instruction or request from the Member; and (iii) the Member’s failure to implement a New Version within the relevant Upgrade Period.
“Renewal Term” has the meaning set forth in Clause 3.2.3 of Part A.
“Representatives” means, with respect to a Party, its Affiliates, and its and their respective managers, officers, directors, employees, professional advisors and/or Auditors (excluding for these purposes any Regulators).
“Rulebook” means the Contour Platform Rules (as may be amended from time to time) that govern the use of the Platform by the Member.
“SDN” has the meaning set forth in Clause 23 of Part A.
“Self-Managed Member” means the category of user selected by the Member in the Order Form.
“Service Credit” has the meaning set forth in Clause 1.5.1 of Schedule 2 of Part B.
“Services” means the Licensed Materials, the Contour Application Support Services, and any other services specified in the Hosting Schedules and Product Schedules set out in this Agreement.
“SIAC” has the meaning set forth in Clause 24.2.1 of Part A.
“Software” means computer programs and software, including data files, Source Code, Object Code, application programming interfaces, architecture, files, records, schematics, emulation and simulation reports, test vectors and Software development tools and databases.
“Source Code” means the set of instructions for a computer program, expressed in a high-level, non-machine language which is conducive to human understanding of a computer program’s logic, from which the Object Code is derived.
“Sponsored Participant” means a Person sponsored by Contour pursuant to the CNS Agreement who uses the Corda
Network and who possesses a Participation Certificate.
“Staging Environment” has the meaning given in Clause 1.1 of Schedule 3 of Part B.
“Staging Environment Fee” has the meaning given in the Order Form.
“Staging Environment Period” has the meaning given in the Order Form.
“Subcontractor” means any third party (including a Contour Affiliate) to which Contour subcontracts or otherwise delegates its obligation to perform any of the Services (including any third party providing any part of the Services on behalf of such Subcontractor).
“Support Handbook” means the document available at https://docs.contour.network/home/support_handbook/support_handbook/ as updated and amended by Contour from time to time.
(a) in the case of a Cloud Member, the Licensed Software and any other software and hardware or equipment necessary to provide the Cloud Services; and
(b) in the case of a Self-Managed Member, the Licensed Software.
“Taxes” has the meaning set forth in Clause 9.8 of Part A.
“Third Party” means a Person that is not a Party or an Affiliate of a Party.
“Third Party Claim” means any Third Party claims or causes of action, lawsuits, demands, litigations and arbitrations.
“Transferring Party” has the meaning set forth in Clause 26.7.2 of Part A.
“Trial Transaction” has the meaning given in Clause 2.1.3 of Schedule 3 of Part B.
“Tribunal” has the meaning set forth in Clause 24.2.2 of Part A.
“Upgrade Period” has the meaning set forth in Clause 4.2 of Schedule 2 of Part B.
“Upgrades” means improvements and/or fixes to a Software comprising of New Versions, Adaptations and Modifications or Patches.
“Use” means, with respect to any Software, to load, copy, install, execute, operate, store, archive, transmit through, view screen displays provided by, and enter and display data inputs through, such Software, together with all ancillary rights customarily or reasonably related to each of the foregoing uses, and with respect to Corda Enterprise, shall also mean to make calls to any Corda Enterprise application program interface.
“User Node” means an instance of the Licensed Software used by the Member to host a Contour Identity.
In this Agreement unless the context otherwise requires:
1.2 any reference to a “Part” or “Annex“, unless the context otherwise requires, is a reference to the relevant part or annex of or to this
Agreement, and any reference to a “Clause“, unless the context otherwise requires, is a reference to a clause in this Agreement;
1.3 a reference to any other document referred to in this Agreement is a reference to that other document as effectively amended, varied, novated or supplemented (other than in breach of the provisions of this Agreement) at any time;
1.4 any reference, express or implied, to an enactment (which includes any enactment, statute, legislation or law in any jurisdiction) includes references to:
1.4.1 that enactment as re-enacted, amended, extended or applied by or under any other enactment (before, on or after the date of this Agreement);
1.4.2 any enactment which that enactment re-enacts (with or without modification); and
1.4.3 any subordinate legislation made (before, on or after the date of this Agreement) under that enactment, as re-enacted, amended, extended or applied;
1.5 the singular includes the plural and vice versa;
1.6 one gender includes the other gender and the neuter;
1.7 use of the words includes or including means without limitation and the use of these or similar words shall not limit the meaning of the general words;
1.8 references to a person include an individual, a body corporate and an unincorporated association of persons;
1.9 day, month and year means a calendar day, a calendar month and a calendar year, respectively;
1.10 headings have been inserted only for convenience and do not affect the interpretation of this Agreement; and
1.11 a reference to the parties, where relevant, includes their respective successors or permitted assigns.