(Revised Februrary 2012)
Welcome To BlackLocus. BlackLocus, Inc. a Delaware corporation, (“BlackLocus, Inc.” “BlackLocus” “us” or “we“) offers a “pricing as a service” proprietary service (as it may be updated from time to time, the “Service“) that is designed to provide eTailers with price analysis and competitive intelligence on the marketplace.
Customer’s Acceptance Of This Agreement. Before we can permit use of the Service, it is important to us that we have a common understanding concerning the terms and conditions that govern such use. This document and the documents that we incorporate by making reference to them here together set forth and establish our common understanding about your use of the Service (together, the “Agreement“) on behalf of you or your organization (hereinafter, the “Customer“).
When you click “I AGREE” upon creating an account, you agree on behalf of Customer to be bound by this Agreement. Customer is only authorized to access or use the Service as a Customer under these terms. Please read this Agreement carefully and save it. If you would like us to send you a copy of it, you can request that here. If you are not authorized to accept this Agreement for Customer or Customer does not agree with it, Customer should not use the Service.
- Representations About Customer. You represent and warrant to us that you have the power and authority to enter into this Agreement on behalf of Customer. Also, you represent and warrant that the information that you provide to us about Customer or its account in connection with the Service will be current, true, accurate, supportable and complete.
- Authorized Users. Customer may allow Customer’s employees or independent contractors to use the Service on behalf of Customer (“Authorized Users”). As a condition to such use, Authorized Users may be required to agree to abide by the terms set forth herein. Customer and Authorized Users shall immediately notify us in the event that Customer or an Authorized User becomes aware of any violation of the terms of this Agreement. Customer shall be liable for any breach of the Agreement by any Authorized User.
- Reservation of Rights With Respect To The Service. We reserve all rights in and to the Service and all related intellectual property not expressly granted under this Agreement. If Customer or any of its Authorized Users submit comments, suggestions, or other feedback regarding the Service (“Feedback”), Customer agrees that we will be free to use such Feedback for any purpose.
- Restrictions On Use Of The Service. Customer may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Service. Customer may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, or any part thereof. If for some reason these restrictions are prohibited by applicable law or by an agreement we have with one of our licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s). Customer shall not exploit the Service in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.
- Limitations on Availability. The Service or some aspects thereof may not be available in all languages or in all countries. We make no representation that the Service is available or permitted in any particular location. Use of the Service is void where prohibited. Customer uses the Service at its own initiative and is responsible for compliance with any applicable laws. We may also impose limits on the use or access to the Service as required by law.
- Fees and Payment Terms. Applicable fees and pricing for the Service (“Subscription Fees”) and set-up (“Set-up Fees” and together with Subscription Fees, “Fees”) shall be communicated by BlackLocus, Inc. to Customer in writing (the “Fee Notice”), and Customer hereby agrees to pay BlackLocus, Inc. in accordance with such Fee Notice. All Fees are due and payable in U.S. dollars, non-refundable (except to the extent set forth herein) and are exclusive of applicable sales, excise, use or similar taxes. Customer shall pay all such taxes directly or to us, as required by applicable law. If payment is not received when due, we may suspend Customer’s and its Authorized Users’ access to the Service. Set-up Fees are due upon acceptance of this Agreement. Subscription Fees shall be invoiced quarterly. Customer can choose to pay the Subscription Fee in its entirety upon acceptance of this agreement and receive a 5% discount. Payment for the first billing cycle is due upon acceptance of this Agreement, and payment for successive billing cycles is due on the corresponding day of each billing cycle (or if there is no such day in the following month, on the last day of such month). If applicable, Customer authorizes BlackLocus, Inc. to charge the credit card (or other electronic payment method) on file with Customer’s account for all Fees. If payment is not made on the respective due date, BlackLocus, Inc. may charge Customer a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly. Should Customer not pay amounts when due, BlackLocus, Inc. may also (at its discretion and in addition to other remedies it may have) suspend Customer’s and Authorized Users’ access to the Service.
- Support and Maintenance. During the Term of this Agreement, BlackLocus, Inc. will provide Customer with a reasonable amount of email support regarding use of the Service. Scheduled system maintenance shall take place from time to time, and during such time, the Service may be unavailable. Emergency maintenance may be required at other times in the event of system failure. We make no guarantees about Service uptime.
- Term. This Agreement will commence on the Effective Date and will continue for a period of one (1) year (the “Term”) unless terminated as set forth herein. After the initial Term, the Agreement will be automatically renewed on an annual basis unless one party notifies the other party in writing at least sixty (60) days prior to the end of the current Term of its desire not to renew.
- Termination. In the event that either party is in material breach of this Agreement, and the non-breaching party does not cure such breach within thirty (30) days following notice of such breach, then the non-breaching party may immediately terminate this Agreement by sending written notice to the breaching party. In addition, BlackLocus, Inc. may terminate this Agreement for its convenience upon thirty (30) days notice to Customer.
- Effect of Termination. Upon termination of the Agreement, Customer shall immediately cease all use of or access to the Service. If BlackLocus, Inc. terminates this Agreement for its convenience, it shall refund a pro-rata portion of any pre-paid Subscription Fees. Sections 3, 4, 6 (as to amounts due as of termination), and 10-19 shall survive any termination or expiration. All other rights and obligations shall be of no further force or effect.
- Data Ownership and License. Customer shall own all right, title, and interest in and to any data that is collected by BlackLocus, Inc. from Customer or Authorized Users in connection with their use of the Service (“Data”). Customer grants and agrees to grant to BlackLocus, Inc. a perpetual, non-exclusive, transferable license to use such Data (a) in order to provide the Service to Customer and the Authorized Users; (b) for statistical use, or on an aggregate or anonymized basis for any purpose (provided that in each such case, the Data is not personally identifiable or identifiable with Customer); and (c) as necessary to monitor and improve the Service. It is Customer’s sole responsibility to back-up the Data during the Term and Customer agrees and acknowledges that post termination or expiration in may not have access to the Data via the Service.
- Confidentiality. Customer acknowledges that the Service, the terms of this Agreement, and any other proprietary or confidential information provided to Customer by BlackLocus, Inc. (“BlackLocus, Inc. Confidential Information”) constitutes valuable proprietary information and trade secrets of BlackLocus, Inc. BlackLocus, Inc. acknowledges that the Data provided to BlackLocus, Inc. by Customer (“Customer Confidential Information”) constitutes valuable proprietary information and trade secrets of Customer. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use except as provided herein, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
- Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY.
- Limitation of Liability. IN NO EVENT SHALL BLACKLOCUS, INC. OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE OR OUR AFFILIATES HAVE LIABILITY TO CUSTOMER FOR DAMAGES IN EXCESS OF THE GREATER OF THE AMOUNT OF TWENTY-FIVE DOLLARS ($25) OR THE AMOUNT CUSTOMER PAID FOR THE SERVICES IN THE SIX (6) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMERS.
- Export and Other Restrictions. Customer may not use or otherwise export or re-export the Service or elements thereof except as authorized by United States law and the laws of the jurisdiction in which the Service was accessed or obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Application, Customer represents and warrants that it is not located in any such country or on any such list. Customer also agrees that it will not use the Service for any purposes prohibited by applicable law. The Service and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
- Consent to Receive Commercial E-mail. We may need to be able to communicate with Customer about the Service, and we would like to be able to make certain commercial offers available to Customer from time to time. AS SUCH, YOU CONSENT ON BEHALF OF CUSTOMER TO RECEIVE COMMERCIAL E-MAIL MESSAGES FROM US AND/OR OUR PARTNERS, AND ACKNOWLEDGE AND AGREE THAT YOUR PRIMARY EMAIL ADDRESSES AND OTHER INFORMATION MAY BE USED FOR THE PURPOSE OF INITIATING COMMERCIAL E-MAIL MESSAGES. We will allow Customer to opt out of receiving some of these messages, but in order to stop receiving any messages from us whatsoever (including administrative messages regarding the Service), Customer will need to terminate its account.
- Modifications. We may modify the terms of this Agreement from time to time. Any such modification shall be effective when we notify Customer of the modification (via an update to the terms delivered via email or through the Service) and Customer subsequently signifies its acceptance of such notice, or uses the Service.
- Supplemental and Third Party Offerings. To enjoy certain aspects of the Service or third party offerings, certain supplemental terms (“Supplemental Terms”) or third party terms (“Third Party Terms”) may apply. Supplemental or Third Party Terms will be presented for review and acceptance at the time that Customer undertakes such activity within the Service. Any Supplemental Terms shall be incorporated into this Agreement, provided that in the event of a conflict with the terms hereof the Supplemental Terms shall prevail with respect to such supplemental offering. Third Party Terms shall constitute an agreement between Customer and the applicable third party. We are not responsible for third party offerings.
- Miscellaneous. The laws of the State of Texas, excluding its conflicts of law rules, govern this license and Customer’s use of the Service. Use of the Service may also be subject to other local, state, national, or international laws. This Agreement constitutes the entire agreement between us regarding use of or access to the Service. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. “BlackLocus, Inc.,” [other marks?], and all associated logos displayed within the Service are our trademarks (unless otherwise noted). This Agreement operates to the fullest extent permissible by law. We may freely transfer or assign this Agreement and any of our rights or obligations hereunder. Customer may not transfer or assign this Agreement or any of its rights or obligations hereunder without our prior written consent, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
Contact Us. We can be reached at: firstname.lastname@example.org.