Legal

Digital Asset Rights Delegation Agreement

Last modified: Apr 17, 2020

This Digital Asset Rights Delegation Agreement (this “Agreement”) is made on the date of a Delegation (the “Effective Date”) by and between you (the “Delegator”) and Bison Trails Co., a Delaware corporation (“Bison Trails” and together with the Delegator, the “Parties”, and each a “Party”).

Recitals

WHEREAS, the Delegator may, from time to time, seek to delegate to Bison Trails certain rights related to certain digital currencies, cryptocurrencies, decentralized application tokens and protocol tokens, smart contracts, blockchain-based assets, cryptoassets and other cryptofinance and digital assets (collectively, “Digital Assets”) so that Bison Trails may utilize such rights in order to secure the underlying Network Protocol and potentially receive additional Digital Assets as rewards;

Now, therefore, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which hereby acknowledged, the Delegator and Bison Trails hereby agree as follows:

A. Definitions.

Applicable Law” means any applicable national, provincial, international, federal, state, county, and local statute, law, ordinance, regulation, rule, code, and order.

Blockchain” means a distributed ledger or database recording transactions in a Digital Asset.

Delegation/Delegated” means the act of transferring any rights or powers with respect to a Digital Asset to another party.

Forfeiture” means as any penalty assessed by a Network Protocol for unavailability or slow, incorrect or malicious performance.

Bison Trails Website” means the website operated by Bison Trails.

Network Protocol” means the rules governing the inclusion of transactions in and the determination of the canonical version of a Blockchain.

Received” means, with respect to a particular Digital Asset, Blockchain and Network Protocol, that: (a) a valid transaction transferring such Digital Asset to a wallet has been included in a valid block that has been added to such Blockchain in accordance with such Network Protocol; and (b) such transaction is deemed final by Bison Trails in its commercially reasonable discretion. Without limiting the generality of the preceding clause “(b),” it is acknowledged and agreed that, in determining whether a transaction is deemed final, Bison Trails may take into account factors such as: (i) the risk, threat or pendency of any Blockchain fork; (ii) the risk, threat or pendency of any attack on any node running the Network Protocol; (iii) the risk, threat or pendency of any bugs, malfunctions or vulnerabilities in the Network Protocol; (iv) the risk, threat or pendency of any latency or delays on the Network Protocol; and (v) whether there have been subsequently appended to the block that includes such transaction a sufficient number of successive valid blocks that directly or indirectly cryptographically reference such transaction.

Revocation” means a Delegator’s discontinuation of the Delegation of their Staking or Voting Rights to Bison Trails.

Reward” means the amount of a particular Supported Digital Asset Received by Bison Trails as compensation for Staking the Delegated Voting and Staking Rights on a Supported Network Protocol, including, block rewards, endorser rewards and transaction fees.

Services” mean any use by Bison Trails of any Staking Rights or Voting Rights that have been Delegated to Bison Trails by Delegator, or any holding of, Delegation or distribution of Rewards payable to Delegator, in each case, pursuant to this Agreement.

Staking” or “Stake” means the process of utilizing Staking or Voting Rights in accordance with a particular Network Protocol in order to potentially have the right or power to validate, generate or approve blocks of transactions for inclusion in a particular Blockchain.

Staking Rights” means the rights and powers associated with a particular Digital Asset under a particular Network Protocol that give the holder of that Digital Asset (or the person to whom that holder has Delegated such rights and powers) the ability (alone or through cooperation with other holders or persons to whom that holder or other holders has or have Delegated such rights and powers) to validate, generate or approve blocks of transactions to be added to a particular Blockchain in accordance with such Network Protocol.

Supported Digital Asset” means a Digital Asset recognized by a Supported Network Protocol.

Supported Network Protocol” means a Network Protocol and Blockchain for which Bison Trails Stakes and provides Services. Bison Trails has the sole discretion to determine Supported Network Protocols.

Term” means the term of the Agreement as outlined in Section (G)(x) of the Agreement.

Unbonding Periods” means the Network Protocol imposed waiting period, during which any Digital Assets, Rewards, Delegated Staking Rights or Delegated Voting Rights may not be withdrawn or transferred.

Voting Rights” means the rights and powers associated with a particular Digital Asset that give the holder of that Digital Asset (or the person to whom that holder has Delegated such rights and powers) the ability (alone or through cooperation with other holders or persons to whom the holder or such other holders has Delegated such rights and powers) to vote upon proposals relating to the Network Protocol, including proposals to change the Network Protocol, amend transactions or blocks previously included in the Blockchain or effectuate any Blockchain fork.

Withdrawal” means a withdrawal by Delegator of Rewards generated under the Agreement in the form of Supported Digital Assets, which will be subject to Unbonding Periods.

B. Covenants of Bison Trails.

Subject to the conditions set forth in Section D, Bison Trails will provide the Delegator with the following Services:

(i) Delegation. Subject to the terms and conditions hereof, the Delegator may, from time to time, delegate the Staking Rights or Voting Rights with respect to a specified number of Supported Digital Assets to Bison Trails via the delegation mechanism established by the applicable Supported Network Protocol. Staking Rights that have been Delegated to Bison Trails by or on behalf of Delegator in accordance with this Agreement are referred to as “Delegated Staking Rights” and Voting Rights that have been Delegated to Bison Trails by or on behalf of Delegator in accordance with this Agreement are referred to as “Delegated Voting Rights”. IF THE DELEGATOR DOES NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, DELEGATOR SHALL NOT DELEGATE TO BISON TRAILS.

(ii) Staking. Bison Trails will use commercially reasonable efforts to perform Staking with respect to any Delegated Staking Rights in a manner intended to cause Bison Trails to Receive Rewards in accordance with the applicable Supported Network Protocol. Bison Trails may perform such Staking in any commercially reasonable manner, including by consolidating such Delegated Staking Rights with other Bison Trails-controlled Staking Rights.

(iii) Voting Rights. Bison Trails may (but shall not be required to) exercise any Delegated Voting Rights in its sole and absolute discretion. Bison Trails assumes no responsibility for any third-party action taken against the Delegator in connection with those actions. Bison Trails will not be liable as a result of any violation in Applicable Law, mistake of judgment, or any other matter or thing done, suffered, or omitted to be done under this Agreement, except for any claims relating to the Bison Trails' fraud or willful misconduct.

C. Rewards, Withdrawals, Revocation Forks, and Forfeitures.

(i) Calculation of Rewards.

(a) Rewards for each Supported Network Protocol will be calculated based on a percentage which shall be set out as a fraction (i) the numerator of which is the number of the particular type of the Supported Digital Asset with respect to which Delegator has Delegated Staking Rights (“Delegator Delegated Digital Assets”) and, (ii) the denominator of which is the number of that type of Supported Digital Asset with respect to which all Bison Trails Delegators have Delegated Staking Rights (“Total Delegated Digital Assets”).

(b) Bison Trails shall have the sole right to determine the exact timing that the record of both the Delegator Delegated Digital Assets and the Total Delegated Digital Assets (a “Snapshot”) are documented. Bison Trails will determine the calculation set forth in Sections (C)(i)(a) and (b) based on a given Snapshot of the applicable Supported Network Protocol.

(c) Additionally, in the majority of Supported Network Protocols, the Snapshot, Reward calculations and distributions are all hardcoded into the Blockchain. For such Supported Network Protocols, Rewards are immutable and Bison Trails has no control over the calculations or payouts.

(d) Once (i) Rewards are Received, the amount of such Rewards minus the Bison Trails Service Fee shall be allocated to Delegator (“Delegator Earned Rewards”).

(ii) Service Payments. Once the Delegator Earned Rewards are earned, Bison Trails shall deduct (or the Supported Network Protoocl will automatically deduct) for Bison Trails’ own account a service fee as set forth on the Bison Trails Website from the Rewards for providing the Services (“Bison Trails Service Fee”).

(iii) No Guarantee of Rewards. Delegator acknowledges that Rewards are not guaranteed and that Delegator may not receive any Reward related to their Delegated Staking and Voting Rights.

(iv) Taxes. Delegator shall be responsible for payment of all applicable taxes, if any, to which the Delegator Earned Rewards might be subject and any and all other taxes which may apply to Delegator or the Delegator Earned Rewards; Bison Trails makes no representations in this regard. Delegator agrees to indemnify and hold Bison Trails Indemnified Persons harmless against any taxes, including penalties, duties and interest levied by any government on the Delegator Earned Rewards. Additionally, Bison Trails may withhold taxes on behalf of the Delegator if requested by a governmental agency. The characterization of the transactions contemplated by this Agreement for U.S. federal income tax purposes is unclear, and accordingly the U.S. federal income tax consequences of Delegating Digital Assets and the sharing of Rewards is uncertain. Neither Bison Trails nor any of its agents shall provide any advice or guidance with respect to the tax obligations of the Delegator. Delegator is strongly encouraged to seek advice from your own tax advisor to discuss the potential tax consequences of entering into this Agreement and the receipt of any Delegator Earned Rewards.

(v) Delegation of Rights Associated with Rewards. Upon Receipt of Delegator Earned Rewards, Bison Trails will cause the Staking Rights or Voting Rights for such Delegator Earned Rewards to be Delegated to Bison Trails, and, from and after such Delegation, such Staking Rights will be deemed Delegated Staking Rights, and such Voting Rights will be deemed Delegated Voting Rights, for all purposes of this Agreement, including Sections (B)(ii) and (B)(iii).

(vi) Withdrawal of Rewards.

(a) Subject to the Delegator covenants specified in Section D, Delegator shall have the right to Withdrawal of Delegator Earned Rewards.

(b) Except as set forth above or with respect to any Voting Rights or Staking Rights that may remain Delegated to Bison Trails hereunder, Bison Trails shall not have any responsibility with respect to any Rewards. Additionally, if any Rewards are lost, destroyed, or transferred to an incorrect wallet address Bison Trails shall bear no responsibility or liability unless such loss was a result of intentional misconduct or fraud on the part of Bison Trails.

(c) Bison Trails may make Withdrawals of any Bison Trails Service Fees at its sole discretion, subject to any restrictions imposed by the applicable Network Protocol.

(d) The Delegator acknowledges and agrees that Delegated Staking Rights, Delegated Voting Rights or Delegator Earned Rewards may not be accessible during Unbonding Periods or as a result of other restrictions imposed by the applicable Network Protocol and may be lost due to Forfeitures imposed by the applicable Network Protocol. THE DELEGATOR ACKNOWLEDGES AND AGREES THAT SUCH RESTRICTIONS MAY LEAD TO SUBSTANTIAL LOSSES OR FORGONE OPPORTUNITIES AND THAT BISON TRAILS HAS NO CONTROL OVER SUCH RESTRICTIONS.

(vii) Revocation of Delegation. The Delegator may start the process of revoking its Delegation with respect to any or all of its Delegated Staking Rights and Delegated Voting Rights at any time by interacting directly with the Network Protocol. DELEGATOR ACKNOWLEDGES THAT BISON TRAILS HAS NO CONTROL OVER THE REVOCATION OF A DELEGATION HOWEVER REVOCATION MAY BE AFFECTED BY UNBONDING PERIODS.

(viii) Operating Changes, Forks and Airdrops. Bison Trails’ response to any material operating change of a Network Protocol, hard fork or airdrop is subject to Bison Trails sole discretion and includes deciding not to support any new Digital Asset, hard fork, airdrop or other actions. Delegator accepts the risks of operating changes or hard forks to Network Protocols and agrees that Bison Trails is not responsible for such operating changes, hard forks or airdrops and is not liable for any loss of value Delegator may experience as a result of such changes in operating rules, hard forks or airdrops. Bison Trails has sole discretion to determine its response to any operating changes, hard forks or airdrops and Bison Trails has no responsibility to assist Delegator with unsupported Network Protocols, Digital Assets or airdrops.

(ix) Forfeitures. DELEGATOR SHALL BE SOLELY RESPONSIBLE FOR ALL LOSSES RELATED TO FORFEITURES OF THEIR DELEGATED DIGITAL ASSETS. BISON TRAILS SHALL HAVE NO LIABILITY WITH RESPECT TO ANY FORFEITURES OF DELEGATOR’S DELEGATED DIGITAL ASSETS OR DELEGATOR EARNED REWARDS.

D. Covenants of Delegator.

The obligations of Bison Trails to fulfill the Services (including Staking of Delegated Staking Rights) contemplated by this Agreement shall be subject to the fulfillment, of each of the following conditions:

(i) Delegator must abide by all of its covenants and obligations under this Agreement and Bison Trails’ Term of Service and Privacy Policy.

(ii) Legislative and regulatory changes or actions that adversely affect Staking generally or Bison Trails specifically and prohibit Bison Trails from providing the Services.

E. Representations and Warranties

(i) Bison Trails has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and binding obligation of Bison Trails, enforceable against Bison Trails in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity. Bison Trails entering into this Agreement will not be a breach or violation of any other contract or agreement to which Bison Trails is bound or Applicable Law to which Bison Trails is subject.

(ii) Delegator represents and warrants to Bison Trails as follows:

(a) Delegator has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and binding obligation of Delegator, enforceable against Delegator in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

(b) Delegator entering into this Agreement will not be a breach or violation of any other contract or agreement to which Delegator is bound or Applicable Laws to which Delegator is subject.

(c) Delegator has good, valid and exclusive title to and ownership of all of the Digital Assets with respect to which any Staking Rights or Voting Rights have been or will be Delegated to Bison Trails, free and clear of all liens, pledges, hypothecations, charges, claims, security interests and other encumbrances.

(d) Delegator is sophisticated and knowledgeable in the matters contemplated by this Agreement and, in determining to enter into and perform its obligations under this Agreement, has relied solely on its own judgment, due diligence and investigation and the representations and warranties of Bison Trails expressly set forth in Section (E)(i), and not on any other representations, warranties, statements or information, written or oral, made or made available by or on behalf of Bison Trails or any of its representatives. Without limiting the generality of the foregoing, Delegator has not relied on any tax, accounting, financial or legal advice provided by or on behalf of Bison Trails or any of its representatives, and Delegator has made its own determination as to the tax and accounting treatment of any payments that may be made to Delegator pursuant to this Agreement.

(e) Delegator (and, if Delegator is an entity, Delegator’s officers, directors, employees, and agents (collectively, the “Representatives”)) are in compliance with the Foreign Corrupt Practices Act of 1977, as amended, and any rules and regulations thereunder, and similar laws of foreign jurisdictions or other anti-money laundering obligations under the law of Delegator’s jurisdiction or otherwise applicable to Representatives; (ii) Delegator is (and, if Delegator is an entity, Delegator’s Representatives are) in compliance with anti-money laundering obligations; (iii) Delegator has not (and, if Delegator is an entity, Delegator’s Representatives have not) been convicted of, or have agreed to enter into a pretrial diversion or similar program in connection with the prosecution of, a criminal offense involving theft, dishonesty, breach of trust, money laundering, the illegal manufacture, sale, distribution of or trafficking in controlled substances, or substantially equivalent activity in a domestic, military, or foreign court; and (iv) Delegator is not (and, if Delegator is an entity, Delegator’s Representatives are not) (a) a person described or designated in the Specifically Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section I of the Anti-Terrorism Order; and (b) engaged in any dealings or transactions with any such person.

(f) Delegators understands, agrees, and acknowledges that it is not relying on any other representations or warranties other than those expressly set forth in this Agreement.

F. Limitation of Liability; Damages; Indemnification

(i) Bison Trails, its officers, managers, employees and members shall not be liable to the Delegator except by reason of any act or omission arising from their intentional misconduct or fraud in connection with this Agreement. Notwithstanding the generality of the foregoing, the Delegator shall bear the risk of any taxes imposed on the Delegator arising from activities under this Agreement and shall bear the risk of all losses with respect to the Delegated Staking Rights and Delegated Voting Rights, including (a) Forfeitures enforced by Network Protocols; (b) missed block creation or endorsement opportunities by Bison Trails for any reason; (c) loss of Delegator Earned Reward while in a Bison Trails wallet; and (d) Digital Asset devaluation; or any of the inherent risks described in Exhibit A.

(ii) BISON TRAILS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, DAMAGE TO REPUTATION, AND COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF Bison Trails HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND SHALL BE ENFORCED TO THE MAXIMUM EXTENT ALLOWABLE BY APPLICABLE LAW. IN NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE Bison Trails, WHETHER IN CONTRACT, WARRANT, TORT OR OTHER THEORY, FOR DAMAGES TO DELEGATOR UNDER THIS AGREEMENT EXCEED THE AMOUNT OF THE Bison Trails SERVICE FEE DURING THE PRECEEDING 12 MOTNH PERIOD OF THIS AGREEMENT.

(iii) To the fullest extent permitted by Applicable Law, the Delegator agrees to and shall defend, indemnify and hold Bison Trails and its affiliates and their respective employees (present and former), members, officers, directors and agents (collectively, the “Bison Trails Indemnified Persons”) harmless from and against any and all claims, damages, expenses (including reasonable attorney fees), losses and costs sustained by Bison Trails Indemnified Persons arising out of, or relating to, this Agreement, except that Bison Trails Indemnified Persons shall not be entitled to indemnification hereunder for any conduct determined by a judge or through an arbitration proceeding to constitute intentional misconduct or fraud in connection with this Agreement.

G. Miscellaneous.

(i) Dispute Resolution

This Agreement is governed by, and shall be construed and enforced under, the laws of the State of New York applicable to contracts made and to be performed wholly within such State, without regard to any choice or conflict of laws rules. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through negotiation it shall be finally resolved by arbitration. The arbitration will be administered by the Judicial Arbitration and Mediation Services (JAMS) pursuant to its Comprehensive Arbitration Rules and Procedures. Disputes will not be resolved in any other forum or venue. The arbitrator shall monitor and reasonably limit discovery in the arbitration to ensure the efficient and timely adjudication of the Parties’ dispute, and to prevent the harassment or burden of the Parties’ respective employees, agents, business partners or third parties. Document discovery shall be limited to information requests deemed necessary and potentially admissible by the arbitrator for adjudication of the dispute. Neither party shall communicate with or seek to subpoena any third-party witness absent prior leave from the arbitrator and upon a showing of necessity related to the claims or defenses in suit. The arbitrator may order that a requesting party pay for discovery related fees or costs reasonably and actually incurred by the other side. The arbitration award will not include factual findings or conclusions of law, and no punitive damages will be awarded. Judgment may be entered upon any award granted in any arbitration in any court of competent jurisdiction in the county and state in which the prevailing party maintains its principal office at the time the award is rendered, or in any other court having jurisdiction. This agreement to arbitrate shall apply to both Parties. The Parties understand that they are giving up their right to a trial in a court of law.

(ii) Class Action Waiver

The Parties agree that any arbitration or other permitted action with respect to any dispute shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. EACH PARTY AGREES THAT SUCH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN SUCH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator makes a final, binding and non-appealable determination that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void with respect to any dispute that would thus be required to be resolved by arbitration on a class basis, and the parties shall be deemed to have not agreed to arbitrate such dispute. In the event that, as a result of the application of the immediately preceding sentence or otherwise, any dispute is not subject to arbitration, the parties hereby agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in San Francisco, California and to accept service of process by mail with respect to such dispute, and hereby waive any and all jurisdictional and venue defenses otherwise available with respect to such dispute.

(iii) Notices

Unless otherwise provided in this Agreement, all notices or demands relating to this Agreement shall be delivered via the Bison Trails Website.

(iv) Entire Agreement

This Agreement and each exhibit referenced herein constitutes the entire Agreement among the Parties with respect to the subject matter hereof and supersedes any prior negotiations, understandings and agreements.

(v) Successors and Assigns

This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the Parties; provided, that neither Party may assign this Agreement or any rights or duties hereunder without the prior written consent of the other Party (such consent to not be unreasonably withheld). Notwithstanding the foregoing, in the event of a change of control of Bison Trails, prior written consent of the Delegator shall not be required. For purposes of the foregoing, a “change of control” shall mean (y) the acquisition of Bison Trails by means of any transaction or series of related transactions (including any reorganization, stock acquisition, merger or consolidation) provided that the applicable transaction shall not be deemed a change of control unless the Bison Trails’ shareholders constituted immediately prior to such transaction (by virtue of outstanding securities of the Bison Trails held by such shareholders immediately prior to such transaction or series of related transactions) hold less than 50% of the voting power of the surviving or acquiring entity, or (z) a sale in one transaction or a series of related transactions of all or substantially all of the assets of the Bison Trails.

(vi) Severability of Provisions

Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

(vii) Relationship of the Parties

Nothing contained in this Agreement shall be deemed or construed by the Parties, or by any third party, to create the relationship of partnership or joint venture between the Parties hereto, it being understood and agreed that no provision contained herein shall be deemed to create any relationship between the Parties hereto other than the contractual relationship defined herein.

(viii) Force Majeure

Delegator understands and agrees that Bison Trails shall not be liable and disclaims all liability to Delegator in connection with any force majeure event, including acts of God, Legislative and regulatory changes or actions related to Digital Assets, Blockchains, Staking or the Services; labor disputes or other industrial disturbances, electrical, telecommunications, hardware, software or other utility failures, software or smart contract bugs or weaknesses, earthquakes, storms, or other nature-related events, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war, technological change, changes in interest rates or other monetary conditions, and, for the avoidance of doubt, changes to any Network Protocol.

(ix) Term and Termination

The Term of this Agreement shall commence on the date hereof and shall continue until 5:00pm, New York City Time, on the date either party delivers termination notice to the other or the Delegator revokes all Delegations. However, the terms of Sections A, C(iv), E, F and G shall survive the expiration or termination of this Agreement for any reason.

(x) Abandoned Property

To the extent required by Applicable Law, if you leave Delegator Earned Rewards unused for the period of time set forth by your state, country, or any other governing body in its unclaimed property laws, if you cancel your Account and leave Delegator Earned Rewards, or if we deactivate your account and you do not meet any conditions necessary to reinstate it within six (6) months, we may close your account and send your Delegator Earned Rewards to any mailing address you provide using the Service or, if required, escheat (send) your Delegator Earned Rewards to your jurisdiction of residency (based on the jurisdiction associated with that mailing address))

(xi) Confidentiality

The Parties acknowledge that the terms of this Agreement and any Arbitration proceeding set forth in Section G(i) will be confidential. The Delegator further acknowledges that, in the course of performing duties under this Agreement, Delegator may obtain from Bison Trails data or information of a confidential or proprietary nature, including know-how and trade secrets, relating to the business, the affairs, the development projects, or current or future products or services of Bison Trails (“Confidential Information”). Data or information will be considered Confidential Information if: (a) Bison Trails has marked it as such; (b) Bison Trails, orally or in writing, has advised the Delegator of its confidential or proprietary nature, or (c) due to its character and nature, a reasonable person under like circumstances would treat it as confidential. Delegator will not (i) publish, disclose or otherwise divulge any of Bison Trails’ Confidential Information to any person, except its officers, employees or agents with a need to know who are under a contractual or professional duty to maintain the confidentiality of such information consistent with the obligations imposed hereunder; or (ii) permit its officers, employees or agents to divulge any of Bison Trails’ Confidential Information without the express prior written consent of Bison Trails. Delegator will protect Bison Trails’ Confidential Information with the same degree of care that the Delegator protects its own information of a similar nature, but in no event less than reasonable care. Delegator will not use Bison Trails’ Confidential Information except in the course of performing its duties under this Agreement. The foregoing obligations will not apply to any Confidential Information that (1) is already known to Delegator; (2) is or becomes publicly known through no wrongful act of Delegator; (3) is independently developed by Delegator without benefit of the Bison Trails’ Confidential Information; (4) is received from a third party without similar restriction and without breach of any obligation of confidentiality; or (5) is required or reasonably necessary to be disclosed to comply with Applicable Laws, statutes, regulations, orders, and other governmental rules. Additionally, Bison Trails will not be prohibited from disclosing the terms and conditions of this Agreement to financial institutions when required to obtain financing or to a third party involved with a potential merger or acquisition (either as target or acquirer). The obligations of confidentiality described above will expire three years after the expiration or termination of this Agreement. However, Delegator agrees that from time to time Bison Trails may collect, store, and use Delegator’s provided personal data for lawful purposes, including data analysis and market research.

(xii) Modifications.

Bison Trails may modify this Agreement at any time by posting such modification on the Bison Trails Website and any such modification shall automatically go into effect five (5) days after it is so posted.

(xiii) Miscellaneous.

Whenever used herein, the singular number shall include the plural, the plural the singular, and the use of the masculine, feminine, or neuter gender shall include all genders. “Including” means “including but not limited to”. “Or” means the non-exclusive “or” or “and/or,” unless qualified by the word “alternative.” This Agreement is solely for the benefit of the parties hereto and their respective successors and assigns, and no other person shall have any right, benefit, priority or interest under, or because of the existence of, this Agreement. The section headings are for convenience only and shall not affect the interpretation or construction of this Agreement. The Parties acknowledge that the Agreement and any Order are the result of negotiation between the Parties which are represented by sophisticated counsel and therefore none of the Agreement’s provisions will be construed against the drafter.



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