ETHENA

FREE TRIAL SERVICES AGREEMENT

Last Modified: 02/23/2023

This Ethena Free Trial Services Agreement (as amended, restated or modified from time to time, this "Agreement") is entered into by and between Ethena, Inc., a Delaware corporation ("Ethena") and the entity accessing any Free Trial Services, as defined below ("Customer"), and sets forth the terms and conditions that govern use of the Free Trial Services under this Agreement. If Customer enters into other terms or agreements with Ethena to use or receive services (including other courses) that are not covered by this Agreement, then such subsequent agreement or terms shall govern the terms between the party as to all services and this Agreement shall be deemed superseded by such agreement or terms.

BY ACCEPTING THIS AGREEMENT BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, CUSTOMER AGREES TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, CUSTOMER MAY NOT USE THE FREE TRIAL SERVICES.

CUSTOMER ACKNOWLEDGES THAT ETHENA MAY DISCONTINUE THE FREE TRIAL SERVICES AT ANY TIME IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

1. DEFINITIONS.

1. "Admin User" means an employee, contractor or consultant of Customer or its Affiliate who is identified by Customer to access and administer the Free Trial Services.
2. “Affiliate” means a legal entity that controls, is controlled by, or is under common control with a party, where “control” is defined as owning more than 50% of the voting shares of such entity.
3. “Agreement” means this Free Trial Services Agreement, the DPA, and any Exhibits, including any other agreements referred to in the Agreement, and any Ethena terms or policies, as applicable.
4. “Authorized User” means any Admin User and/or a Training Recipient, as applicable.
5. “Confidential Information” means any business or technical information disclosed by one party to the other party, including Customer Data, provided that it is identified as confidential at the time of disclosure or that under the circumstances, a person exercising reasonable business judgment would understand it to be confidential or proprietary.
6. “Customer Data” means any data that is submitted to the Free Trial Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Free Trial Services by Customer (including from third party Free Trial Services), (b) data provided by or about Customer’s Training Recipients, (c) any Response Data, and (d) data about Customer’s use and configuration of the Free Trial Services.
7. “DPA” means the data privacy addendum located at  https://app.goethena.com/documents/EthenaDataPrivacyAddendum.html.
8. “Documentation” means any documentation provided by Ethena to Customer in connection with the Free Trial Services.
9. “Effective Date” means the date that Customer agrees to this Agreement.
10. “Feedback” means comments, questions, suggestions, evaluations, or any other feedback relating to any Ethena product or service.
11. “Free Trial Services“ means the Ethena course  entitled "In Good Company with Melanie Naranjo”, which is delivered by Ethena via the Ethena online platform and email and browser based applications, as well as any other services (including courses, content, or features) provided by Ethena that are specifically designated by Ethena as “Free”. For clarity, use of the Ethena online platform and email and browser based applications is provided only for the limited purpose of delivering the course entitled “In Good Company with Melanie Naranjo” or other services specifically designated by Ethena as “Free”, and cannot be used by Customer for any other purpose. 
12. Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction.
13. “Response Data” means all information, data and responses submitted to the Service by Customer’s Training Recipients
14. “Sensitive Personal Information” means any information that if disclosed could result in substantial harm, embarrassment, inconvenience or unfairness, including but not limited to any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) any other sensitive personal data of an EU or UK citizen deemed to be in a “special category” (as identified in General Data Protection Regulation or any successor directive or regulation); or (iv) any other sensitive personal data as defined under the California Consumer Privacy Act (or any successor statute or regulation) and any other applicable data privacy and data protection laws in the United States.
15. “Term” as defined in Section 8 of this Agreement.
16. “Training Recipients” mean Customer’s or its Affiliate’s employees, contractors, consultants, agents, directors, officers or other personnel who Customer wishes to receive training through the Free Trial Services.

2. Free Trial Services.

1. Free Trial Services. Subject to the terms of this Agreement and the Documentation, during the Term, Ethena grants Customer a worldwide, non-exclusive, perpetual, irrevocable, royalty-free license to use and access the Free Trial Services for Customer’s Training Recipients, solely for Customer’s own business purposes. Use of and access to the Free Trial Services is permitted only by Admin Users and Training Recipients. Customer acknowledges that at any time Ethena may modify or adjust the Free Trial Services.
2. Restrictions. Customer will not allow anyone other than Authorized Users to access or use the Free Trial Services from Customer’s accounts. Customer will not and will ensure that its Authorized Users do not: (i) attempt to interfere with or disrupt the Free Trial Services (or any related systems or networks) or use the Free Trial Services other than directly for Customer’s benefit; (ii) copy, modify or distribute any portion of the Free Trial Services; (iii) rent, lease, or resell the Free Trial Services; (iv) transfer any of its rights hereunder; or (v) reverse-engineer or access the Free Trial Services in order to build a competitive product or service.
3. Compliance with Applicable Laws. Customer is responsible for compliance with applicable laws related to the provision of the Free Trial Services to Training Recipients and any other Authorized User. In addition, Customer represents and warrants that it is and will remain in compliance with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations; is not subject to, or owned by parties that are subject to, sanctions or otherwise identified on any sanctions-related list, including but not limited to lists maintained by the United States government; and is not engaging, and will not engage, in activities which may require or permit any applicable government authority to pursue an enforcement action against, or impose economic sanctions on you or us.
4. API Keys; Passwords. If Customer is given API keys or passwords to access the Free Trial Services on Ethena's systems, Customer will require that all Admin Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Free Trial Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Admin User who has access to a user ID is no longer an employee, contractor or consultant of Customer, then Customer will promptly delete such user ID and otherwise terminate such Admin User's access to the Service.
5. Customer acknowledges that the Free Trial Services do not include Customer support, content configuration, or any customization for Customer, and may not include other features that are included in the Ethena services provided to Ethena customers that either pay for the Ethena services or have agreed to other terms and services separately with Ethena. All content in the Free Trial Services will be provided in English. 

3. DATA

1. Customer Data. Customer is solely responsible for obtaining any necessary right and licenses for use of the Customer Data by Customer and Ethena as contemplated in this Agreement. Customer agrees that it has the legal right and authority to access, use and disclose to Ethena any Customer Data. Customer authorizes Ethena to access, process, and use the Customer Data as necessary to perform and fulfill its obligations hereunder, including, without limitation, to: (i) manage Customer’s account; (ii) provide and improve the Free Trial Services; and (iii) to provide Customer and Authorized Users insights, feature announcements, and other reporting. Ethena will process and maintain any Customer Data that constitutes Personal Data (as defined in the DPA) consistent with the DPA, which is hereby incorporated by reference.
2. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Ethena may collect, generate, use, and maintain data about Customer's use of the Free Trial Services in an aggregate, anonymized form ("Aggregated Anonymous Data'') for any lawful purpose, including to operate, improve, and support the Free Trial Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Ethena customers.
3. No Sensitive Personal Information. Neither party will intentionally use the Free Trial Services to collect, store, process or transmit any Sensitive Personal Information, and if any Sensitive Personal Information is found, each party agrees to promptly delete it.
4. Information Security. Ethena agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Free Trial Services or Customer Data. However, Ethena will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Ethena's control.

4. FEES.

1. Fees. Ethena licenses the Free Trial Services to Customer during the Term without any compensation or fees from Customer. If Customer adds or enters into other agreements with Ethena for any other services (including any other content, courses, or features) from Ethena, Customer may be subject to additional fees, costs or expenses for such services.

5. PROPRIETARY RIGHTS.

1. Customer owns and retains: (i) the Customer Data; (ii) Customer’s name, logo and other trademarks; and (iii) all Intellectual Property Rights in and to any of the foregoing.

1. Ethena owns and retains: (i) the Free Trial Services, and all improvements, enhancements or modifications made by any party; (ii) the Aggregate Anonymous Data; (iii) the Content; (iv) the Documentation; (v) any software, applications, inventions or other technology developed by Ethena in connection with providing the Free Trial Services; (vi) Ethena’s name, logo, and other trademarks; and (v) all Intellectual Property Rights in and to any of the foregoing.
2. Feedback. Customer may, from time to time, provide Ethena with Feedback. Customer grants Ethena a worldwide, non-exclusive, perpetual, irrevocable, royalty-free license to use, copy, disclose, license, distribute and exploit any and all Feedback for any purpose. Feedback is provided to Ethena on an “as-is” basis without warranties of any kind. Nothing in these Terms limits Ethena’s right to independently use, develop, evaluate, or market products whether incorporating Feedback or otherwise.
3. Publicity.  Customer hereby grants Ethena a limited revocable license to use Customer’s name and logo solely for the purpose of identifying Customer as a user of the Free Trial Service and attributing any Feedback provided by Customer, in accordance with Customer’s logo and usage guidelines. Customer may revoke this license grant at any time upon written notice to Ethena.

6. CONFIDENTIALITY

1. Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary under this Agreement and will not disclose Confidential Information to any third party except: (a) to those of its employees and contractors who have a business need to know such Confidential Information; provided that each such employee and contractor is bound to confidentiality restrictions at least as restrictive as the terms set forth in this Agreement or (b) as further described in the DPA. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 6(a) will remain in effect during the Term and for a period of five (5) years after the expiration or termination thereof, except with regard to trade secrets of the disclosing party, which will be held in confidence for as long as such information remains a trade secret.
2. Exclusions. The obligations and restrictions set forth in Section 6(a) will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without access to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
3. Permitted Disclosures. The provisions of this Section 6 will not restrict either party from disclosing the other party’s Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that to the extent legally permitted, the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations.
4. Injunctive Relief. The receiving party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

7. WARRANTY

1. ALL FREE TRIAL SERVICES, DOCUMENTATION  AND ANY AND ALL OTHER MATERIAL PROVIDED BY COMPANY TO CUSTOMER UNDER THIS AGREEMENT ARE PROVIDED “AS IS''. NEITHER ETHENA NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. ETHENA DOES NOT WARRANT THAT CUSTOMER'S USE OF THE FREE TRIAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES ETHENA WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. ETHENA WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ETHENA. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.  COMPANY MAKES NO GUARANTEE AS TO THE RESULTS OR OUTCOMES OF USING THE SERVICE.  CUSTOMER AGREES THAT ETHENA DOES NOT PROVIDE LEGAL ADVICE OR ENGAGE IN THE PRACTICE OF LAW.

8. TERM AND TERMINATION

1. Term. This Agreement will commence on the Effective Date and continue until the earlier of one year or the date this Agreement is terminated pursuant to Section 8(b). Notwithstanding the foregoing, Ethena reserves the right to extend the Term of this Agreement, in its sole discretion.
2. Suspension and Termination of Free Trial Services. Ethena reserves the right to suspend, limit, or terminate Customer's access to the Free Trial Service at any time without notice and without liability.  In addition, Customer may terminate this Agreement at any time with thirty (30) business days written notice to Ethena. Either party may immediately suspend or terminate this Agreement if the other party materially breaches any material terms of this Agreement.
3. Rights and Obligations Upon Expiration or Termination.  Upon expiration or termination of this Agreement, Customer’s and Authorized Users’ right to access and use the Free Trial Services will immediately terminate and each will immediately cease all use of the Free Trial Services. Customer acknowledges that following termination it will have no further access to any Customer Data input into the Free Trial Services, and that Ethena may delete any such data as may have been stored by Ethena at any time.
4. Survival. The rights and obligations of Ethena and Customer contained in Sections 3(b) (Aggregate Anonymous Data), 4 (Fees), 5 (Proprietary Rights), 6 (Confidentiality), 8(c) (Rights and Obligations Upon Expiration or Termination), 8(d) (Survival), 9 (Indemnification),  10 (Limitation of Liability), and 11 (General) will survive any expiration or termination of this Agreement.

9. INDEMNIFICATION

1. Indemnification by Customer. Customer will defend Ethena, its officers, directors and employees, from and against any action or suit brought against Ethena by a third party based on a claim that (i) the Customer Data infringes or violates the rights of a third party, (ii) Customer’s failure to comply with applicable law, (iii) claims brought by Customer’s Training Recipients, (iv) Customer’s breach of this Agreement or any agreements or terms with Ethena, (v) Customer’s access to and use of the Ethena site, or (vi) arising from a security or data breach by Customer. Customer will indemnify and hold harmless Ethena from and against any damages and costs awarded against Ethena or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim, provided that (x) Ethena provides Customer with prompt written notice of such claim; (y) Ethena provides reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (z) Customer has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes any material liability upon Ethena or requires Ethena to admit wrongdoing.

10. LIMITATION OF LIABILITY.

1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ETHENA, ITS AFFILIATES, ITS SUPPLIERS, OR ITS EMPLOYEES AGENTS, CONTRACTORS, OFFICERS, OR DIRECTORS BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF ETHENA KNEW OR SHOULD HAVE KNOW THAT SUCH DAMAGES WERE POSSIBLE, EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY.  
2. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ETHENA’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED FIFTY ($50) U.S. DOLLARS.

11. GENERAL

1. Governing Law. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in New York, NY. Ethena and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
2. Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.
3. Notices. Customer will provide written notice to Ethena at 33 Nassau Ave., Second Floor, Brooklyn, NY 11222 or at Ethena’s email address below, and Ethena will provide written notice to Customer at the mailing address or email address on record in Customer’s account. The notices will be deemed to have been given upon: (i) the date actually delivered in person; (ii) the day after the date sent by overnight courier; (iii) three (3) days following the date such notice was mailed by first class mail; or (iv) the date sent by email to Ethena at legal@goethena.com or Customer at the Customer’s email address on record in Customer’s account.
4. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
5. Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money owed) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, pandemics, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, rolling blackouts, and internet connectivity disruptions.
6. Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties.
7. Assignment. Customer may not assign its rights or obligations under this Agreement without Ethena’s prior written consent.
8. Entire Agreement. This Agreement (including any Exhibits hereto) constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement; provided that any agreements in writing between Ethena and Customer that refer to other Ethena product or service  shall remain in effect and Customer is obligated to fulfill and pay its obligations under such terms.
9. Modifications to this Agreement. Ethena may modify all or any part of this Agreement at any time by posting a revised version of the Agreement on Ethena’s website at https://app.goethena.com/documents/EthenaFreeTrialServicesAgreement.html. If Ethena deems any modifications to this Agreement to be material, Ethena will make a reasonable effort to inform Customer of such modifications. By continuing to use the Free Trial Services after the effective date of any modification to this Agreement, Customer agrees to be bound by the modified Agreement. Except as this Agreement otherwise allows, this Agreement may not be modified except in writing signed by a duly authorized representative of each party. Notwithstanding the  foregoing, Ethena may modify the features, products or services of the Free Trial Services at any time.
10. No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.