PLEASE READ THESE TERMS OF SERVICE (THIS “AGREEMENT”) CAREFULLY BEFORE ACCESSING OR USING THE SERVICES (DEFINED BELOW) BECAUSE THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND BLACK INK TECHNOLOGIES, INC. (“BLACK INK”). IF YOU DO NOT ACCEPT OR UNDERSTAND THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
Black Ink and you, the person or entity (“Customer”) identified in a written order form signed by both parties (each an “Order Form”), are the parties to this Agreement.
Black Ink may modify portions of this Agreement, without prior notice to Customer, (each, an “Update”) from time to time, and Updates will be effective immediately. If Black Ink makes Updates, it will change the “Last Updated” date above. Customer’s continued use of the Services confirms acceptance of the Update and the updated Agreement. Black Ink encourages Customer to frequently review the Agreement to ensure Customer understands the latest terms and conditions.
Black Ink and you, the person or entity (“Customer”) identified in a written order form signed by both parties (each an “Order Form”), are the parties to this Agreement.
Black Ink may modify portions of this Agreement, without prior notice to Customer, (each, an “Update”) from time to time, and Updates will be effective immediately. If Black Ink makes Updates, it will change the “Last Updated” date above. Customer’s continued use of the Services confirms acceptance of the Update and the updated Agreement. Black Ink encourages Customer to frequently review the Agreement to ensure Customer understands the latest terms and conditions.
1. Services.
a) Access and Availability. Black Ink will make its online, web application specified in the Order Form (the “Services”) available to (a) Customer and (b) individuals who are authorized by Customer to use the Services on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Black Ink at Customer’s request), including employees, consultants, contractors, and agents of Customer (“Users”) in accordance with the terms of this Agreement. On an Order Form-by-Order Form basis, Black Ink hereby grants the Customer and its Users a limited, revocable, non-exclusive, non-transferrable right to access and use the Services described in an Order Form for the applicable Subscription Term (defined in Section 1(b)) for the number of Users specified in the Order Form and for Customer’s internal business purposes only, subject to and in accordance with this Agreement (including the specific access rights and limitations set forth in the Order Form) (the “Subscription”). Each Subscription provides use of Services on a User-by-User basis for a single individual, and may not be shared by multiple people. Customer acknowledges that its Subscription is not dependent on any future functionality or features (or any public comments or other disclosure made by Black Ink with respect thereto).
b) Subscription Term. Customer’s initial subscription term for the Services commences on the expected “Subscription Start Date” stated in the Order Form, or, if none is provided in the Order Form, the day the first User login names and a password are issued to Customer to access the Services under the Order Form (the “Subscription Start Date”). The Subscription will continue for the “Initial Subscription Term” specified in the Order Form (the “Initial Subscription Term”), and will automatically renew for successive periods as specified in the initial Order Form (each, a “Renewal Term”). If the parties execute a separate order form for such renewal, then (a) the separate mutually executed renewal order form will be deemed to be an addendum to and become part of the “Order Form” for purposes of this Agreement, and will therefore be governed in part by these Terms and will become a part of this Agreement, (b) the renewal term set forth in such separate mutually executed renewal order form will be deemed to be a “Renewal Term” hereunder and (c) this sentence will continue to apply for further subsequent renewals. The Initial Subscription Term plus all Renewal Terms are referred to herein as the “Subscription Term”.
c) Customer Affiliates. The Subscription is granted solely to the Customer and its authorized Users, and not any other third parties (including not to any of Customer’s affiliates), except as otherwise set forth in the Order Form. Customer may, if set forth in an Order Form, purchase Subscriptions to the Services on behalf of its affiliates or other third parties in order to access Customer Data, provided that if any such entities are granted any right to access or use the Services hereunder, Customer will remain fully responsible and liable for all acts and omissions of such entities and their users (also “Users”), and will cause such entities to comply with the provisions of this Agreement and be liable for their noncompliance.
a) Access and Availability. Black Ink will make its online, web application specified in the Order Form (the “Services”) available to (a) Customer and (b) individuals who are authorized by Customer to use the Services on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Black Ink at Customer’s request), including employees, consultants, contractors, and agents of Customer (“Users”) in accordance with the terms of this Agreement. On an Order Form-by-Order Form basis, Black Ink hereby grants the Customer and its Users a limited, revocable, non-exclusive, non-transferrable right to access and use the Services described in an Order Form for the applicable Subscription Term (defined in Section 1(b)) for the number of Users specified in the Order Form and for Customer’s internal business purposes only, subject to and in accordance with this Agreement (including the specific access rights and limitations set forth in the Order Form) (the “Subscription”). Each Subscription provides use of Services on a User-by-User basis for a single individual, and may not be shared by multiple people. Customer acknowledges that its Subscription is not dependent on any future functionality or features (or any public comments or other disclosure made by Black Ink with respect thereto).
b) Subscription Term. Customer’s initial subscription term for the Services commences on the expected “Subscription Start Date” stated in the Order Form, or, if none is provided in the Order Form, the day the first User login names and a password are issued to Customer to access the Services under the Order Form (the “Subscription Start Date”). The Subscription will continue for the “Initial Subscription Term” specified in the Order Form (the “Initial Subscription Term”), and will automatically renew for successive periods as specified in the initial Order Form (each, a “Renewal Term”). If the parties execute a separate order form for such renewal, then (a) the separate mutually executed renewal order form will be deemed to be an addendum to and become part of the “Order Form” for purposes of this Agreement, and will therefore be governed in part by these Terms and will become a part of this Agreement, (b) the renewal term set forth in such separate mutually executed renewal order form will be deemed to be a “Renewal Term” hereunder and (c) this sentence will continue to apply for further subsequent renewals. The Initial Subscription Term plus all Renewal Terms are referred to herein as the “Subscription Term”.
c) Customer Affiliates. The Subscription is granted solely to the Customer and its authorized Users, and not any other third parties (including not to any of Customer’s affiliates), except as otherwise set forth in the Order Form. Customer may, if set forth in an Order Form, purchase Subscriptions to the Services on behalf of its affiliates or other third parties in order to access Customer Data, provided that if any such entities are granted any right to access or use the Services hereunder, Customer will remain fully responsible and liable for all acts and omissions of such entities and their users (also “Users”), and will cause such entities to comply with the provisions of this Agreement and be liable for their noncompliance.
2. Customer Conduct and Use.
a) Customer Data; Upload Restrictions. Customer will retain all right, title and interest in and to all data uploaded by Customer and its Users to the Services, as well as all information generated by Users using of the Services (collectively, “Customer Data”). Customer will not upload into the Services any person’s financial or medical information of any nature, or any personally identifiable information except for names and email addresses as necessary for use of the Services, and none of the foregoing will be deemed “Customer Data” hereunder, and Customer will remove such information from the Services immediately or, at its reasonable discretion, Black Ink may purge the same from the Services. Customer acknowledges that Black Ink shall have no liability with respect to access, storage, processing or use of personally identifiable information uploaded by Customer to the Services. Black Ink will not use Customer Data except: (i) to provide product functionality in support of its business; (ii) to configure and operate the Services; (iii) to respond to service or technical problems; (iv) to enforce and monitor compliance with this Agreement; or (v) at Customer’s request. Black Ink may also collect data with respect to Customer’s use of the Services and report on such usage in an aggregated and anonymous manner.
b) Compliance. Customer is responsible for (i) all activities that occur with respect to the Customer account, (ii) its and its Users’ use of the Services and compliance with this Agreement, and (iii) all Customer Data and other data uploaded, stored or accessible by Customer or its Users via or on the Services. Customer and its Users will comply with all applicable privacy, publicity, data protection, electronic communications, spam and other applicable laws and regulations in connection with the use of the Services, including the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), the EU Data Protection Directive.
c) Certain Restrictions. Customer and its Users will use the Services only for internal business purposes and only as contemplated by this Agreement, and will not:
• interfere with or disrupt the use of the Services by any other Customer or User
•tamper with the security of the Services or Black Ink’s other customer accounts;
•attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or willfully render any part of the Services unusable;
•access data on the Services not intended for the Customer or log into a server or account on the Services that Customer is not authorized to access;
•lease, distribute, (sub)license, sell or otherwise commercially exploit the Services, use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, or make the Services (including any evaluation version) available to a third party other than as contemplated in this Agreement;
•allow any third party that offers or provides services that are competitive with Black Ink’s products or services to use or access the Services, use or access the Services to develop a product or service that is competitive with Black Ink’s products or services or otherwise copy any ideas, features, functions or graphics of the Services;
•reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Services, or modify or create a derivative work of the Services or any related documentation;
•remove or obscure any product identification, proprietary, copyright or other notices contained in the Services or related documentation;
•create any link to the Services or frame or mirror any content contained or accessible from the Services; or
•disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Services (including benchmark tests); or
•use the content to develop, support, create or provide pricing for: (i) any product or service that competes directly with the content or any other Black Ink product or service offered in the marketplace or would create a functional substitute for any such Black Ink products, services, or content; or
• use any linking, deep-linking, framing or page-scraping technology, robots, spiders or other automatic devices, programs, algorithms or methodologies, or any similar or equivalent manual processes, to access, acquire, copy, distribute, display or monitor any portion of the Services, or any systems supporting the Services or any content, or in any way reproduce or circumvent the navigational structure or presentation of the Services or any content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Services; or
•take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or Black Ink’s systems or networks, or any systems or networks connected to this Services, the systems that enable the services, or to Black Ink; or
•download, upload, post, transmit, publish or distribute any material or information that constitutes or encourages conduct that would constitute a criminal offence, give rise to other liability, or otherwise violate applicable law.
In addition, Customer may not use Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:
• Use of an internet account or computer without the owner’s authorization;
• Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
• Collecting or using email addresses, screen names or other identifiers without the appropriate consent, authorization, permission, license, approval or other applicable right (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
• Collecting or using an individual’s information without the appropriate consent, authorization, permission, license, approval or other applicable right;
• Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
• Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
• Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft’s “ad/remove” tool); or
• Any conduct that is likely to result in retaliation against Black Ink’s or its service provider’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS);
• Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
• Interference with service to any user of any network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
Customer may not use the Services in a way that unnecessarily interferes with the normal operation of Black Ink’s third party provider’s (“Third Party Provider”) shared system, or that consumes a disproportionate share of the resources of the system. Customer agrees that Third Party Providers may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.
Customer must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, Customer’s bulk and commercial email must meet the following requirements:
• Customer’s intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
• Customer’s procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
• Customer retain evidence of the recipient’s consent in a form that may be promptly produced on request, and Customer honors the recipient’s and Third Party Providers’ requests to produce consent evidence within 72 hours of receipt of the request;
• Customer has procedures in place that allow a recipient to revoke their consent — such as a link in the body of the email, or instructions to reply with the word “Remove” in the subject line; Customer honors revocations of consent within 48 hours, and notifies recipients that the revocation of their consent will be implemented in 48 hours;
• Customer must post an email address for complaints (such as abuse@yourdomain.com) in a conspicuous place on any website associated with the email, must register that address at abuse.net, and must promptly respond to messages sent to that address;
• Customer must have a Privacy Policy posted for each domain associated with the mailing; • Customer has the means to track anonymous complaints;
• Customer must not obscure the source of its e-mail in any manner. Customer e-mail must include the recipient’s e-mail address in the body of the message or in the “TO” line of the e-mail;
• Customer must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days.
These policies apply to messages sent using the services, or to messages sent from any network by Customer or any person on its behalf that directly or indirectly refer the recipient to a site hosted via the services. In addition, Customer may not use a third party e-mail service that does not practice similar procedures for all its customers. These requirements apply to distribution lists created by third parties to the same extent as if Customer created the list.
Third Party Providers may test and otherwise monitor compliance with these requirements, including requesting opt-in information from a random sample of Customer’s list at any time. In addition, Third Party Providers may block the transmission of email that violates these provisions.
Customer may not attempt to probe, scan, penetrate or test the vulnerability of a Third Party Provider system or network, or to breach Third Party Provider security or authentication measures, whether by passive or intrusive techniques.
Customer must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which it participates, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.
Customer may not publish, transmit or store on or via the Services any content or links to any content that Third Party Provider reasonably believes:
• Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
• is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
• is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
• is defamatory or violates a person’s privacy;
• creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with an investigation by law enforcement;
• improperly exposes trade secrets or other confidential or proprietary information of another person;
• is intended to assist others in defeating technical copyright protections;
• infringes on another person’s copyright, trade or service mark, patent or other property right;
• promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
• is otherwise illegal or solicits conduct that is illegal under applicable laws; or
• is otherwise malicious, fraudulent or may result in retaliation against Black Ink or its service providers by offended viewers.
Customer may not use Services to stream live sex acts of any kind.
Customer may not use Services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image or other work protected by copyright law unless:
• Customer has been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or
• Customer is otherwise permitted by established copyright law to copy the work in that manner.
Black Ink may terminate Customer’s access to the Services upon any actual or threatened violation of this Section 2(c).
d) Customer Content. Customer will be responsible for all Customer Data and its communications using the Services. Customer will not use the Services for any content that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes, misappropriates or violates the rights of any third party or is unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law. Black Ink will use reasonable efforts to provide Customer with the opportunity to remove or disable access to Customer Data upon Customer’s reasonable written request.
e) Suspension. In the event of any breach or threatened breach of this Agreement by Customer or any Users (including non-payment of fees), without limiting Black Ink’s other rights and remedies, Black Ink may immediately suspend Customer’s access to the Services, without relief of Customer’s financial obligations hereunder, until such breach is cured.
a) Customer Data; Upload Restrictions. Customer will retain all right, title and interest in and to all data uploaded by Customer and its Users to the Services, as well as all information generated by Users using of the Services (collectively, “Customer Data”). Customer will not upload into the Services any person’s financial or medical information of any nature, or any personally identifiable information except for names and email addresses as necessary for use of the Services, and none of the foregoing will be deemed “Customer Data” hereunder, and Customer will remove such information from the Services immediately or, at its reasonable discretion, Black Ink may purge the same from the Services. Customer acknowledges that Black Ink shall have no liability with respect to access, storage, processing or use of personally identifiable information uploaded by Customer to the Services. Black Ink will not use Customer Data except: (i) to provide product functionality in support of its business; (ii) to configure and operate the Services; (iii) to respond to service or technical problems; (iv) to enforce and monitor compliance with this Agreement; or (v) at Customer’s request. Black Ink may also collect data with respect to Customer’s use of the Services and report on such usage in an aggregated and anonymous manner.
b) Compliance. Customer is responsible for (i) all activities that occur with respect to the Customer account, (ii) its and its Users’ use of the Services and compliance with this Agreement, and (iii) all Customer Data and other data uploaded, stored or accessible by Customer or its Users via or on the Services. Customer and its Users will comply with all applicable privacy, publicity, data protection, electronic communications, spam and other applicable laws and regulations in connection with the use of the Services, including the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), the EU Data Protection Directive.
c) Certain Restrictions. Customer and its Users will use the Services only for internal business purposes and only as contemplated by this Agreement, and will not:
• interfere with or disrupt the use of the Services by any other Customer or User
•tamper with the security of the Services or Black Ink’s other customer accounts;
•attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or willfully render any part of the Services unusable;
•access data on the Services not intended for the Customer or log into a server or account on the Services that Customer is not authorized to access;
•lease, distribute, (sub)license, sell or otherwise commercially exploit the Services, use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, or make the Services (including any evaluation version) available to a third party other than as contemplated in this Agreement;
•allow any third party that offers or provides services that are competitive with Black Ink’s products or services to use or access the Services, use or access the Services to develop a product or service that is competitive with Black Ink’s products or services or otherwise copy any ideas, features, functions or graphics of the Services;
•reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Services, or modify or create a derivative work of the Services or any related documentation;
•remove or obscure any product identification, proprietary, copyright or other notices contained in the Services or related documentation;
•create any link to the Services or frame or mirror any content contained or accessible from the Services; or
•disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Services (including benchmark tests); or
•use the content to develop, support, create or provide pricing for: (i) any product or service that competes directly with the content or any other Black Ink product or service offered in the marketplace or would create a functional substitute for any such Black Ink products, services, or content; or
• use any linking, deep-linking, framing or page-scraping technology, robots, spiders or other automatic devices, programs, algorithms or methodologies, or any similar or equivalent manual processes, to access, acquire, copy, distribute, display or monitor any portion of the Services, or any systems supporting the Services or any content, or in any way reproduce or circumvent the navigational structure or presentation of the Services or any content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Services; or
•take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or Black Ink’s systems or networks, or any systems or networks connected to this Services, the systems that enable the services, or to Black Ink; or
•download, upload, post, transmit, publish or distribute any material or information that constitutes or encourages conduct that would constitute a criminal offence, give rise to other liability, or otherwise violate applicable law.
In addition, Customer may not use Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:
• Use of an internet account or computer without the owner’s authorization;
• Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
• Collecting or using email addresses, screen names or other identifiers without the appropriate consent, authorization, permission, license, approval or other applicable right (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
• Collecting or using an individual’s information without the appropriate consent, authorization, permission, license, approval or other applicable right;
• Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
• Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
• Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft’s “ad/remove” tool); or
• Any conduct that is likely to result in retaliation against Black Ink’s or its service provider’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS);
• Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
• Interference with service to any user of any network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
Customer may not use the Services in a way that unnecessarily interferes with the normal operation of Black Ink’s third party provider’s (“Third Party Provider”) shared system, or that consumes a disproportionate share of the resources of the system. Customer agrees that Third Party Providers may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.
Customer must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, Customer’s bulk and commercial email must meet the following requirements:
• Customer’s intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
• Customer’s procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
• Customer retain evidence of the recipient’s consent in a form that may be promptly produced on request, and Customer honors the recipient’s and Third Party Providers’ requests to produce consent evidence within 72 hours of receipt of the request;
• Customer has procedures in place that allow a recipient to revoke their consent — such as a link in the body of the email, or instructions to reply with the word “Remove” in the subject line; Customer honors revocations of consent within 48 hours, and notifies recipients that the revocation of their consent will be implemented in 48 hours;
• Customer must post an email address for complaints (such as abuse@yourdomain.com) in a conspicuous place on any website associated with the email, must register that address at abuse.net, and must promptly respond to messages sent to that address;
• Customer must have a Privacy Policy posted for each domain associated with the mailing; • Customer has the means to track anonymous complaints;
• Customer must not obscure the source of its e-mail in any manner. Customer e-mail must include the recipient’s e-mail address in the body of the message or in the “TO” line of the e-mail;
• Customer must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days.
These policies apply to messages sent using the services, or to messages sent from any network by Customer or any person on its behalf that directly or indirectly refer the recipient to a site hosted via the services. In addition, Customer may not use a third party e-mail service that does not practice similar procedures for all its customers. These requirements apply to distribution lists created by third parties to the same extent as if Customer created the list.
Third Party Providers may test and otherwise monitor compliance with these requirements, including requesting opt-in information from a random sample of Customer’s list at any time. In addition, Third Party Providers may block the transmission of email that violates these provisions.
Customer may not attempt to probe, scan, penetrate or test the vulnerability of a Third Party Provider system or network, or to breach Third Party Provider security or authentication measures, whether by passive or intrusive techniques.
Customer must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which it participates, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.
Customer may not publish, transmit or store on or via the Services any content or links to any content that Third Party Provider reasonably believes:
• Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
• is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
• is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
• is defamatory or violates a person’s privacy;
• creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with an investigation by law enforcement;
• improperly exposes trade secrets or other confidential or proprietary information of another person;
• is intended to assist others in defeating technical copyright protections;
• infringes on another person’s copyright, trade or service mark, patent or other property right;
• promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
• is otherwise illegal or solicits conduct that is illegal under applicable laws; or
• is otherwise malicious, fraudulent or may result in retaliation against Black Ink or its service providers by offended viewers.
Customer may not use Services to stream live sex acts of any kind.
Customer may not use Services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image or other work protected by copyright law unless:
• Customer has been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or
• Customer is otherwise permitted by established copyright law to copy the work in that manner.
Black Ink may terminate Customer’s access to the Services upon any actual or threatened violation of this Section 2(c).
d) Customer Content. Customer will be responsible for all Customer Data and its communications using the Services. Customer will not use the Services for any content that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes, misappropriates or violates the rights of any third party or is unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law. Black Ink will use reasonable efforts to provide Customer with the opportunity to remove or disable access to Customer Data upon Customer’s reasonable written request.
e) Suspension. In the event of any breach or threatened breach of this Agreement by Customer or any Users (including non-payment of fees), without limiting Black Ink’s other rights and remedies, Black Ink may immediately suspend Customer’s access to the Services, without relief of Customer’s financial obligations hereunder, until such breach is cured.
3. Confidentiality
a) Scope. “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) in connection with this Agreement that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms and conditions of the Order Form and all Work Product (defined in Section 7(b)) are Confidential Information of Black Ink.
b) Restrictions. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than in confidence to its (a) employees and agents who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder (and for Black Ink, it may disclose Customer Confidential Information to Third Party Providers) and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information.
c) Exceptions. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 3 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt (other than as received from the Disclosing Party); (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; or (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation.
d) Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might 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 or equity without being required to post a bond.
a) Scope. “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) in connection with this Agreement that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms and conditions of the Order Form and all Work Product (defined in Section 7(b)) are Confidential Information of Black Ink.
b) Restrictions. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than in confidence to its (a) employees and agents who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder (and for Black Ink, it may disclose Customer Confidential Information to Third Party Providers) and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information.
c) Exceptions. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 3 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt (other than as received from the Disclosing Party); (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; or (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation.
d) Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might 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 or equity without being required to post a bond.
4. Fees; Interest; Taxes.
Customer will pay to Black Ink all of the fees specified in the Order Form, in United States currency, unless otherwise specified in the Order Form. Such fees are based on Subscriptions purchased, whether or not Customer actually utilizes the service. Fees for additional Services that may be activated either by the Customer or Black Ink, at the Customer’s request, will be charged in accordance with the rates specified in the Order Form. All payment obligations are non-cancellable. Except as may be expressly set forth in this Agreement, all amounts paid Black Ink are non-refundable. Fees will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, all fees are due within thirty (30) days from the invoice date. If Customer does not pay invoiced amounts when due then Black Ink may, without limiting its other available remedies, assess a late payment fee of 1.5% per month or the highest amount permitted under applicable law (whichever is less) on the unpaid amounts and/or suspend provision of the Service upon notice to Customer. Customer will reimburse for all reasonable out-of-pocket expenses and fees for collection of any delinquent payments. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Black Ink. Customer will not withhold any Taxes from any amounts due Black Ink. If Black Ink pays any such taxes on behalf of Customer, Customer will reimburse Black Ink for such payments.
Customer will pay to Black Ink all of the fees specified in the Order Form, in United States currency, unless otherwise specified in the Order Form. Such fees are based on Subscriptions purchased, whether or not Customer actually utilizes the service. Fees for additional Services that may be activated either by the Customer or Black Ink, at the Customer’s request, will be charged in accordance with the rates specified in the Order Form. All payment obligations are non-cancellable. Except as may be expressly set forth in this Agreement, all amounts paid Black Ink are non-refundable. Fees will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, all fees are due within thirty (30) days from the invoice date. If Customer does not pay invoiced amounts when due then Black Ink may, without limiting its other available remedies, assess a late payment fee of 1.5% per month or the highest amount permitted under applicable law (whichever is less) on the unpaid amounts and/or suspend provision of the Service upon notice to Customer. Customer will reimburse for all reasonable out-of-pocket expenses and fees for collection of any delinquent payments. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Black Ink. Customer will not withhold any Taxes from any amounts due Black Ink. If Black Ink pays any such taxes on behalf of Customer, Customer will reimburse Black Ink for such payments.
5. Proprietary Rights.
a) Customer is permitted to access and use the Services, but this Agreement is not otherwise an agreement for the sale or license of any software. Customer acknowledges that the Services contain copyrighted and proprietary products and materials, certain components of which are licensed from one or more of Black Ink’s licensors. Black Ink and Black Ink’s licensors solely and exclusively retain all right, title and interest in and to the Services and related support, documentation and professional services deliverables, and all related and underlying software, interfaces, databases, data models, structures, non-Customer-specific content and data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto (all of the foregoing, the “Black Ink IP”). Black Ink IP includes without limitation data that Black Ink develops as a derivative of Customer Data or in combination with other Customer Data or third party data sets, or as otherwise derived from or processed through use of Customer Data, so long as such developed, derived or processed data does not identify Customer. Customer has no right, title or interest in or to the Black Ink IP, and Black Ink reserves all rights therein and thereto, and may use and disclose Black Ink IP without obligation to Customer.
b) Customer is permitted to download only the content provided by Customer to Black Ink, and only in the form in which said content was provided, that is purposely and expressly made available by Black Ink for downloading from the Service, provided that Customer: (i) does not remove any proprietary notice or disclaimer language in any copies of such content, (ii) uses such content only for Customer’s personal, non-commercial informational purpose, and does not copy or post such information on any networked computer or broadcast it in any media, (iii) makes no modifications to any such content, and (iv) does not make any representations or warranties relating to same.
c) Black Ink may use Customer Data to create derivative works, transformations, visualizations, statistics, and other work product, and may modify Customer Data, including through mathematical, logical, or other means (in all cases, “Work Product”). Black Ink solely and exclusively owns all Work Product, and grants to Customer a nonexclusive license to use, copy and modify Work Product for its internal business purposes only, and in compliance with all applicable laws. Customer may not distribute Work Product outside of its organization. Work Product does not include Customer Data.
d) Customer may not use contact information provided by Black Ink through the Services to generate or distribute blast or batch correspondence, and in creating correspondence based on such information, such correspondence must be unique and sent on a one-to-one basis to the specific recipient and other recipients that are reasonably related. All such contact information constitutes Black Ink Confidential Information and Customer may not disclose such contact information to any person or entity except to its employees as necessary in order to use the Services.
e) If Customer submits any ideas, content, suggestions, information or feedback relating to the Services (“Suggestions”), then Customer hereby assigns, transfers and conveys to Black Ink, all worldwide right, title and interest in and to all intellectual property rights in any Suggestions, all contract and licensing rights, and all claims and causes of action with respect to any of the foregoing, whether now known or hereafter to become known. Customer represents and warrants that to the best of its knowledge (a) Customer is the sole owner of any intellectual property rights in the Suggestion(s); (b) Customer has the full and exclusive right to convey the entire interest in and to its Suggestion(s); and (c) Customer’s Suggestion(s) do not infringe any copyright, trade secret, patent or other intellectual property right. Customer agrees to cooperate with and assist Black Ink, at Black Ink’s expense, in obtaining, sustaining, enforcing and enjoying to the fullest extent all right, title and interest conveyed herein.
a) Customer is permitted to access and use the Services, but this Agreement is not otherwise an agreement for the sale or license of any software. Customer acknowledges that the Services contain copyrighted and proprietary products and materials, certain components of which are licensed from one or more of Black Ink’s licensors. Black Ink and Black Ink’s licensors solely and exclusively retain all right, title and interest in and to the Services and related support, documentation and professional services deliverables, and all related and underlying software, interfaces, databases, data models, structures, non-Customer-specific content and data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto (all of the foregoing, the “Black Ink IP”). Black Ink IP includes without limitation data that Black Ink develops as a derivative of Customer Data or in combination with other Customer Data or third party data sets, or as otherwise derived from or processed through use of Customer Data, so long as such developed, derived or processed data does not identify Customer. Customer has no right, title or interest in or to the Black Ink IP, and Black Ink reserves all rights therein and thereto, and may use and disclose Black Ink IP without obligation to Customer.
b) Customer is permitted to download only the content provided by Customer to Black Ink, and only in the form in which said content was provided, that is purposely and expressly made available by Black Ink for downloading from the Service, provided that Customer: (i) does not remove any proprietary notice or disclaimer language in any copies of such content, (ii) uses such content only for Customer’s personal, non-commercial informational purpose, and does not copy or post such information on any networked computer or broadcast it in any media, (iii) makes no modifications to any such content, and (iv) does not make any representations or warranties relating to same.
c) Black Ink may use Customer Data to create derivative works, transformations, visualizations, statistics, and other work product, and may modify Customer Data, including through mathematical, logical, or other means (in all cases, “Work Product”). Black Ink solely and exclusively owns all Work Product, and grants to Customer a nonexclusive license to use, copy and modify Work Product for its internal business purposes only, and in compliance with all applicable laws. Customer may not distribute Work Product outside of its organization. Work Product does not include Customer Data.
d) Customer may not use contact information provided by Black Ink through the Services to generate or distribute blast or batch correspondence, and in creating correspondence based on such information, such correspondence must be unique and sent on a one-to-one basis to the specific recipient and other recipients that are reasonably related. All such contact information constitutes Black Ink Confidential Information and Customer may not disclose such contact information to any person or entity except to its employees as necessary in order to use the Services.
e) If Customer submits any ideas, content, suggestions, information or feedback relating to the Services (“Suggestions”), then Customer hereby assigns, transfers and conveys to Black Ink, all worldwide right, title and interest in and to all intellectual property rights in any Suggestions, all contract and licensing rights, and all claims and causes of action with respect to any of the foregoing, whether now known or hereafter to become known. Customer represents and warrants that to the best of its knowledge (a) Customer is the sole owner of any intellectual property rights in the Suggestion(s); (b) Customer has the full and exclusive right to convey the entire interest in and to its Suggestion(s); and (c) Customer’s Suggestion(s) do not infringe any copyright, trade secret, patent or other intellectual property right. Customer agrees to cooperate with and assist Black Ink, at Black Ink’s expense, in obtaining, sustaining, enforcing and enjoying to the fullest extent all right, title and interest conveyed herein.
6. Term and Termination.
a) This Agreement will be effective during the Subscription Term, unless earlier terminated as follows. Unless otherwise stated in the Order Form, this Agreement and each Order Form may only be terminated: (i) by a party upon written notice to the other party (A) if the other party materially breaches a term of this Agreement or Order Form, respectively, and does not cure such breach within thirty (30) days (or, in the case of non-payment, fifteen (15) days) after receipt of notice of such breach; or (B) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (ii) by Black Ink pursuant to Section 9(a) or in the event of a breach by Customer of Section 2 of these Terms. Termination of this Agreement shall automatically terminate each Order Form.
b) Outstanding Fees. Customer will pay all fees owed to Black Ink that have accrued up until termination of each Order Form immediately upon termination. In addition, Customer will pay Black Ink, within thirty (30) days after termination, all unpaid amounts that would have been owed to Black Ink for the remainder of the then-current Subscription Term absent early termination.
c) Effect of Termination. Upon any termination of any Order Form or this Agreement, Customer will immediately cease all use of and access to the Services under the terminated Order Form(s) and delete (or, at Black Ink’s request, return) all related documentation, passwords and access codes and any other Black Ink Confidential Information in its possession. Black Ink shall have the right to request reasonable confirmation of the same within 90 days after termination. Black Ink will have no liability for any suspension or termination of Customer’s access to the Services, or any termination of this Agreement, provided that it is conducted in accordance with the terms of this Agreement. Upon written request by Customer made within thirty (30) days after termination of any Service Order other than by Black Ink under Section 6(a)(i)(A), Black Ink will provide Customer its Customer Data in the original form and manner in which it was provided at the time in which it was provided or, at its option, provide Customer with temporary access to the Services solely for Customer to retrieve its Customer Data, but not any other purpose. Except in connection with such 30-day period, Black Ink will have no obligation to maintain or provide access to such Customer Data after the Subscription Term and will thereafter, unless legally prohibited and except for archival backup purposes, have the right to delete all such Customer Data in its possession or control. Sections 3, 4, 5, 6, 7(a), 7(c), 8, 9 and 10 of these Terms will survive any termination or expiration of this Agreement.
a) This Agreement will be effective during the Subscription Term, unless earlier terminated as follows. Unless otherwise stated in the Order Form, this Agreement and each Order Form may only be terminated: (i) by a party upon written notice to the other party (A) if the other party materially breaches a term of this Agreement or Order Form, respectively, and does not cure such breach within thirty (30) days (or, in the case of non-payment, fifteen (15) days) after receipt of notice of such breach; or (B) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (ii) by Black Ink pursuant to Section 9(a) or in the event of a breach by Customer of Section 2 of these Terms. Termination of this Agreement shall automatically terminate each Order Form.
b) Outstanding Fees. Customer will pay all fees owed to Black Ink that have accrued up until termination of each Order Form immediately upon termination. In addition, Customer will pay Black Ink, within thirty (30) days after termination, all unpaid amounts that would have been owed to Black Ink for the remainder of the then-current Subscription Term absent early termination.
c) Effect of Termination. Upon any termination of any Order Form or this Agreement, Customer will immediately cease all use of and access to the Services under the terminated Order Form(s) and delete (or, at Black Ink’s request, return) all related documentation, passwords and access codes and any other Black Ink Confidential Information in its possession. Black Ink shall have the right to request reasonable confirmation of the same within 90 days after termination. Black Ink will have no liability for any suspension or termination of Customer’s access to the Services, or any termination of this Agreement, provided that it is conducted in accordance with the terms of this Agreement. Upon written request by Customer made within thirty (30) days after termination of any Service Order other than by Black Ink under Section 6(a)(i)(A), Black Ink will provide Customer its Customer Data in the original form and manner in which it was provided at the time in which it was provided or, at its option, provide Customer with temporary access to the Services solely for Customer to retrieve its Customer Data, but not any other purpose. Except in connection with such 30-day period, Black Ink will have no obligation to maintain or provide access to such Customer Data after the Subscription Term and will thereafter, unless legally prohibited and except for archival backup purposes, have the right to delete all such Customer Data in its possession or control. Sections 3, 4, 5, 6, 7(a), 7(c), 8, 9 and 10 of these Terms will survive any termination or expiration of this Agreement.
7. Warranties and Disclaimers.
a) Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement (including these Terms). Customer represents and warrants that it has the right to deliver all Customer Data to Black Ink hereunder, and that Black Ink has the right to use Customer Data as permitted herein.
b) Functionality Warranty. Black Ink warrants that the Services will operate in substantial conformity with the then current version of the applicable Services documentation published by Black Ink.
c) Disclaimer. EXCEPT FOR THE WARRANTIES CONTAINED IN SECTIONS 7(A) AND 7(B), (I) THE SERVICES AND ALL INFORMATION AND DATA ARE PROVIDED BY BLACK INK “AS IS”, AND (II) BLACK INK, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRANTIES CONTAINED IN SECTIONS 7(A) AND 7(B) ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. BLACK INK AND ITS LICENSORS DO NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS, (B) THE OPERATION OF THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, (C) ANY ERRORS IN THE SERVICES CAN OR WILL BE CORRECTED, (D) THE SERVICES OR THE FUNCTIONS CONTAINED THEREIN, OR ANY RESULTS OF THE USE THEREOF (INCLUDING ESTIMATES AND OPTIMIZATION OF THIRD PARTY ADVERTISING), WILL MEET CUSTOMER’S REQUIREMENTS, INCLUDING FOR RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS. BLACK INK AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURES, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of Customer information and Customer Data.
a) Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement (including these Terms). Customer represents and warrants that it has the right to deliver all Customer Data to Black Ink hereunder, and that Black Ink has the right to use Customer Data as permitted herein.
b) Functionality Warranty. Black Ink warrants that the Services will operate in substantial conformity with the then current version of the applicable Services documentation published by Black Ink.
c) Disclaimer. EXCEPT FOR THE WARRANTIES CONTAINED IN SECTIONS 7(A) AND 7(B), (I) THE SERVICES AND ALL INFORMATION AND DATA ARE PROVIDED BY BLACK INK “AS IS”, AND (II) BLACK INK, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRANTIES CONTAINED IN SECTIONS 7(A) AND 7(B) ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. BLACK INK AND ITS LICENSORS DO NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS, (B) THE OPERATION OF THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, (C) ANY ERRORS IN THE SERVICES CAN OR WILL BE CORRECTED, (D) THE SERVICES OR THE FUNCTIONS CONTAINED THEREIN, OR ANY RESULTS OF THE USE THEREOF (INCLUDING ESTIMATES AND OPTIMIZATION OF THIRD PARTY ADVERTISING), WILL MEET CUSTOMER’S REQUIREMENTS, INCLUDING FOR RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS. BLACK INK AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURES, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of Customer information and Customer Data.
8. Limitations of Liability.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, AND EXCEPT FOR CUSTOMER’S BREACH OF SECTION 2, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL BLACK INK BE LIABLE TO CUSTOMER FOR ANY DAMAGES, COSTS, CLAIMS OR OTHER LIABILITIES (INCLUDING INDEMNIFICATION OBLIGATIONS) RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE LESSER OF (I) THE TOTAL FEES PAID BY THE CUSTOMER FOR THE RIGHT TO ACCESS AND USE THE SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CAUSE OF ACTION AND (II) ONE HUNDRED THOUSAND U.S. DOLLARS (US$100,000). BLACK INK’S LICENSORS DISCLAIM ALL LIABILITY TO CUSTOMER, WHETHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL (INCLUDING LOST PROFITS), ARISING IN CONNECTION WITH THIS AGREEMENT. EXCEPT WITH RESPECT TO ENFORCING CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT OR A BREACH OF SECTION 2 OR 3, NO ACTION AGAINST EITHER PARTY ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY THE OTHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. THIS SECTION 8 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, AND EXCEPT FOR CUSTOMER’S BREACH OF SECTION 2, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL BLACK INK BE LIABLE TO CUSTOMER FOR ANY DAMAGES, COSTS, CLAIMS OR OTHER LIABILITIES (INCLUDING INDEMNIFICATION OBLIGATIONS) RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE LESSER OF (I) THE TOTAL FEES PAID BY THE CUSTOMER FOR THE RIGHT TO ACCESS AND USE THE SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CAUSE OF ACTION AND (II) ONE HUNDRED THOUSAND U.S. DOLLARS (US$100,000). BLACK INK’S LICENSORS DISCLAIM ALL LIABILITY TO CUSTOMER, WHETHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL (INCLUDING LOST PROFITS), ARISING IN CONNECTION WITH THIS AGREEMENT. EXCEPT WITH RESPECT TO ENFORCING CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT OR A BREACH OF SECTION 2 OR 3, NO ACTION AGAINST EITHER PARTY ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY THE OTHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. THIS SECTION 8 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
9. Mutual Indemnification.
a) Black Ink Indemnification. Black Ink will indemnify, defend and hold harmless Customer against any claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer, including such third party’s alleged or incurred loss, damage or cost (including reasonable and necessary attorneys’ fees) (“Losses”) alleging that the Services infringe the patents or copyrights of such third party in the United States or Canada. Notwithstanding the foregoing, if Black Ink reasonably believes that the Customer’s use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party intellectual property rights then Black Ink may, at its expense and in its sole discretion: (i) procure for the Customer the right to continue using the Services; (ii) replace the same with other non-infringing software, services or other material of substantially equivalent functions; or (iii) modify the applicable software, services or other material so that there is no longer any infringement, violation or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Services. If, in Black Ink’s opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, Black Ink may, in its sole discretion, terminate this Agreement and refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Black Ink will not apply: (1) if the Services is modified by any party other than Black Ink, but solely to the extent the alleged infringement is caused by such modification; (2) if the Services is combined with other non-Black Ink products, applications, or processes not authorized by Black Ink, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Services or use of the Services in violation of this Agreement; (4) to any third party deliverables or components contained within the Services that are not provided by Black Ink; or (5) to any action arising as a result of the Customer Data. THIS SECTION 9(a) SETS FORTH BLACK INK’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
b) Customer Indemnification. Customer will indemnify, defend and hold Black Ink and its affiliates, and its and their officers, directors, employees, agents and contractors (“Black Ink Indemnitees”), harmless from and against any Losses incurred in connection with Claims against Black Ink Indemnitees arising from or relating to (i) Customer Data or (ii) Customer’s use of the Services except to the extent Black Ink is obligated to indemnify Customer under Section 9(a).
c) Procedure. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability without the aggrieved party’s prior written consent); and (iii) the aggrieved party will reasonably with the indemnifier (at the indemnifier’s expense), and execute all documents necessary for the defense and settlement of such Claim.
a) Black Ink Indemnification. Black Ink will indemnify, defend and hold harmless Customer against any claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer, including such third party’s alleged or incurred loss, damage or cost (including reasonable and necessary attorneys’ fees) (“Losses”) alleging that the Services infringe the patents or copyrights of such third party in the United States or Canada. Notwithstanding the foregoing, if Black Ink reasonably believes that the Customer’s use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party intellectual property rights then Black Ink may, at its expense and in its sole discretion: (i) procure for the Customer the right to continue using the Services; (ii) replace the same with other non-infringing software, services or other material of substantially equivalent functions; or (iii) modify the applicable software, services or other material so that there is no longer any infringement, violation or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Services. If, in Black Ink’s opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, Black Ink may, in its sole discretion, terminate this Agreement and refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Black Ink will not apply: (1) if the Services is modified by any party other than Black Ink, but solely to the extent the alleged infringement is caused by such modification; (2) if the Services is combined with other non-Black Ink products, applications, or processes not authorized by Black Ink, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Services or use of the Services in violation of this Agreement; (4) to any third party deliverables or components contained within the Services that are not provided by Black Ink; or (5) to any action arising as a result of the Customer Data. THIS SECTION 9(a) SETS FORTH BLACK INK’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
b) Customer Indemnification. Customer will indemnify, defend and hold Black Ink and its affiliates, and its and their officers, directors, employees, agents and contractors (“Black Ink Indemnitees”), harmless from and against any Losses incurred in connection with Claims against Black Ink Indemnitees arising from or relating to (i) Customer Data or (ii) Customer’s use of the Services except to the extent Black Ink is obligated to indemnify Customer under Section 9(a).
c) Procedure. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability without the aggrieved party’s prior written consent); and (iii) the aggrieved party will reasonably with the indemnifier (at the indemnifier’s expense), and execute all documents necessary for the defense and settlement of such Claim.
10. General Provisions.
a) Entire Agreement; Interpretation. This Agreement (which consists of the Order Form and these Terms) constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s Subscription to the Services described in the Order Form, and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of these Terms and the Order Form, the terms of the Order Form will govern for purposes of such Order Form only. This Agreement will control over any different or additional terms of a Customer purchase order or other non-Black Ink ordering document, and no terms included in any Customer purchase order or other non-Black Ink ordering document will apply to the Customer’s Subscription or use of the Services. Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement. For purposes hereof, “including” means “including without limitation”.
b) Marketing. Except as provided for in the Order Form, neither party may issue any press release regarding this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
c) Relationship of Customer and Black Ink. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
d) Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
e) Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party, except that each party may assign this Agreement without the consent of the other party by way of acquisition of all or substantially all of such party’s assets or business relating to this Agreement or similar change in control, provided that acquiring entity assumes all obligations of the acquired party hereunder.
f) Governing Law. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
g) Notices. Any notices under this Agreement will be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Black Ink will be sent to the address for Black Ink set forth in the Order Form and addressed to the Office Manager, with a copy to the President. Notices to Customer will be sent to the address for Customer set forth in the Order Form and addressed to Customer’s signatory unless otherwise designated by Customer.
h) Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
i) Facsimile Transmission/Counterparts/Electronic Signatures. This Agreement may be executed and delivered by facsimile or email, and upon receipt such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument. The parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually. In no event will electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
j) Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
k) Force Majeure. Black Ink will not be liable to Customer for any failure or delay in performance caused by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
a) Entire Agreement; Interpretation. This Agreement (which consists of the Order Form and these Terms) constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s Subscription to the Services described in the Order Form, and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of these Terms and the Order Form, the terms of the Order Form will govern for purposes of such Order Form only. This Agreement will control over any different or additional terms of a Customer purchase order or other non-Black Ink ordering document, and no terms included in any Customer purchase order or other non-Black Ink ordering document will apply to the Customer’s Subscription or use of the Services. Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement. For purposes hereof, “including” means “including without limitation”.
b) Marketing. Except as provided for in the Order Form, neither party may issue any press release regarding this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
c) Relationship of Customer and Black Ink. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
d) Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
e) Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party, except that each party may assign this Agreement without the consent of the other party by way of acquisition of all or substantially all of such party’s assets or business relating to this Agreement or similar change in control, provided that acquiring entity assumes all obligations of the acquired party hereunder.
f) Governing Law. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
g) Notices. Any notices under this Agreement will be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Black Ink will be sent to the address for Black Ink set forth in the Order Form and addressed to the Office Manager, with a copy to the President. Notices to Customer will be sent to the address for Customer set forth in the Order Form and addressed to Customer’s signatory unless otherwise designated by Customer.
h) Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
i) Facsimile Transmission/Counterparts/Electronic Signatures. This Agreement may be executed and delivered by facsimile or email, and upon receipt such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument. The parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually. In no event will electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
j) Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
k) Force Majeure. Black Ink will not be liable to Customer for any failure or delay in performance caused by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.