Subscription Services Agreement
This Subscription Services Agreement (the “Agreement”) constitutes a legal, binding agreement between Black Apple Consulting Group, LLC (“BACG”) and the client identified in the order form (“Client”) for certain Services (as defined in Section 1.1) and states the terms upon which BACG provides such Services to Client. The “Effective Date” of the Agreement shall be the date upon which Client first executes the order form for Services (“Order Form”) located at this order page/link. By executing an Order Form, Client agrees to the terms of this Agreement; provided that, to the extent of any conflicting term, the Order Form shall supersede this Agreement solely with respect to the conflicting term.
1. Services
1.1 BACG Services. Subject to Client’s compliance with this Agreement, BACG will provide, and hereby grants Client the limited, non-exclusive, non-sublicensable right to access and use BACG’s website and obtain the services as described at www.blackappleconsultinggroup.com/services (the “Service Descriptions”), initially set forth in the order form executed by Client or purchased pursuant to Section 1.2 (“Services”). BACG may modify the Services and the Service Descriptions from time to time, provided that such modifications do not materially adversely affect the Services.
1.2 Services Activation. Following the execution of the Order Form, BACG shall initiate activation of the Service by providing the Client with access to an account within the applicable Service (“Activation Date”). The client is responsible for configuring Client messaging services or other systems to transmit Client Data (as defined in Section 3.4) to BACG.
1.3 Data Retention. BACG will retain Client Data for the Term of the Agreement unless Client requests or implements specific retention policies within the Services. Any specific retention policies will be based on variables assigned to Client Data by Client and Client shall be solely responsible for the retention policies applied to Client Data.
1.4 Usage Licenses. A “Seat” means any user, device, email address, domain, or other usage metric indicated on the Order Form for which BACG provides Services. If such Services are ordered by Client, BACG grants Client the right to use the Services for the number of Seats set forth in the Order Form. The number of Seats specified in the initial Order Form is Client’s minimum Seat commitment. From time to time BACG may review the Client’s account within the Services to validate the Client’s usage of the Service for compliance with this Agreement. Additionally, the Client agrees to provide BACG with usage reports in the format BACG may reasonably request. If Client’s use of a Service exceeds Client’s license for such Service, Client may be required to pay an additional fee for the applicable service to Client’s reseller.
2. Fees
Payment for the initial setup and standard monthly services rendered hereunder shall be made by Client as specified in Client’s Order Form. In the event Client fails to make payment of any amount due to BAG, BACG may suspend the Services and/or terminate Client’s account without notice to Client and without liability to Client for such suspension or termination.
3. Client’s Use of the Services.
3.1 Client Account. The client shall create an account within the Services. The client is responsible for (a) ensuring that the Client’s account registration information is complete and accurate, and (b) the security and confidentiality of the Client’s account credentials. Client shall designate at least one authorized user who shall have administrative access to Client’s account, with full access privileges and the authority to place orders under Section 1.2 (“Authorized User”). The Authorized User is responsible for managing all aspects of the Services, including without limitation, requesting changes or modifications to the Services, adding or removing users, webpages, URL(s), or adding or deleting Authorized Users. Client acknowledges and agrees that BACG will only accept such requests from Authorized Users or a verified officer of Client’s organization. BACG may, in its sole discretion, refuse to comply with any request if the identity of the Authorized User or the officer making any such request cannot be reasonably verified. The Services may only be used by Client’s authorized employees, agents, or contractors in the performance of their duties to Client. Client shall notify BACG immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Client shall not permit BACG competitors to access the Services for any reason. The client is solely responsible for all activity that occurs within the Client’s account and for the actions of its employees, contractors, or agents, whether or not such person is or was acting within the scope of their employment, engagement, or agency relationship.
3.2 Acceptable Use. THE SERVICES ARE PROVIDED FOR INFORMATION PURPOSES ONLY. THE SERVICES ARE NOT LEGAL ADVICE AND SHALL NOT BE INTERPRETED OR APPLIED AS LEGAL ADVICE. THE SERVICES AND THE INFORMATION CONTAINED THEREIN ARE NOT PROVIDED BY ATTORNEYS. THE CLIENT IS SOLELY RESPONSIBLE FOR UTILIZING THE CLIENT’S OWN PROFESSIONAL JUDGMENT, KNOWLEDGE, AND EXPERIENCE IN INTERPRETING AND APPLYING THE RESULTS OF THE SERVICES. The client is responsible for the data and content provided to BACG via the Services and represents and warrants that such content shall not (a) infringe any third-party right, including, without limitation, third-party rights in patent, trademark, copyright, or trade secret; or (b) constitute a breach of any other right of a third party, including without limitation, any right under the contract or tort theories. Notwithstanding the generality of the foregoing, Client represents that, with respect to any information, content, data, documents, or other materials Client provides to BACG (“Client Data”), Client has all necessary rights or licenses to provide such Client Data, and the provision to BACG of such Client Data does not place Client or BACG) in violation of any laws, regulations, codes of conduct or ethics, rules of court, or other restrictions. Client shall abide by all applicable local, state, national, or foreign laws, rules, regulations, or rules in connection with Client’s use of the Services including, without limitation, those related to data privacy, communications, SPAM communications, or the transmission and storage of technical or personal data.
3.3 Client Data Transmission. Client acknowledges and agrees that (a) it is Client’s sole responsibility to monitor Client Data to ensure that Client Data is properly transmitted to BACG; (b) Client shall notify BACG of any delivery failures or outages of Client’s systems (or its service providers) which may affect the transmission of Client Data; and (c) it is Client’s responsibility to encrypt data sent to BACG. BACG is not responsible or liable for any update, upgrade, patch, maintenance, or other change which affects the transmission of Client Data to BACG. It is the Client’s responsibility to (i) ensure that BACG is notified of all email domains, or other electronic messages to be archived; and (ii) to obtain all necessary consents with respect to the transmission, collection, and storage of Client Data.
3.4 License to Client Data. Client hereby grants BACG the limited, non-exclusive right to access, copy, transmit, download, display, and reproduce Client Data and to provide Client Data to third parties, as necessary to provide, support, and improve the Services, or as otherwise authorized hereunder. Client represents and warrants that Client has all necessary rights in and to the Client Data to grant the foregoing license to BACG.
3.5 Client Indemnification. Client shall indemnify, defend and hold harmless BACG, its officers, directors, members, managers, employees, and agents, from and against all claims, losses, damages, liabilities, and expenses (including reasonable attorneys’ fees), arising from Client’s breach of any of Client’s obligations under this Agreement including, without limitation, this Section 3. BACG will Client with prompt written notice upon becoming aware of any such claim; provided that, Client shall not be relieved of its obligation for indemnification as the result of BACG’s failure to provide such notice unless Client is actually prejudiced in defending such a claim as a result of BACG’s failure to provide notice. If requested by Client, and at Client’s expense, BACG will cooperate with the defense of such claim.
4. Confidentiality.
4.1 Confidential Information. “Confidential Information” means (a) the non-public business, technical, legal, or client information of either party, including but not limited to information relating to either party’s clients, designs, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how; (b) any information designated by either party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; (c) the terms of this Agreement; or (d) Client Data. “Confidential Information” will not include information that: (i) is in, or enters, the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party knew prior to receiving such information from the disclosing party, or (iv) the receiving party develops independently without reference to the Confidential Information.
4.2 Confidentiality Obligations. Each party agrees: (a) that it will not disclose to any third party or use for its own benefit or the benefit of any third party, any Confidential Information disclosed to it by the other party except as expressly permitted in this Agreement; and (b) that it will take reasonable measures to maintain the confidentiality of Confidential Information of the other party in its possession or control. Either party may disclose Confidential Information of the other party: (x) pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to contest such order or requirement; or (y) to the parties agents, representatives, subcontractors or service providers who have a need to know such information provided that such party maintains the Confidential Information on a confidential basis.
4.3 Remedies. Each party acknowledges and agrees that a breach of the obligations of this Section 4 by the other party will result in irreparable injury to the disclosing party for which there will be no adequate remedy at law, and the disclosing party shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened breach or intended breach by the recipient.
5. Intellectual Property Rights.
As between BACG and Client, all server hardware, software, and applications required to operate the Services, and other associated technology or documentation, are the sole and exclusive property of BACG. Except as expressly stated herein, nothing in this Agreement shall serve to transfer to Client any intellectual property right in or to the Services, software comprising or utilized in the Services, BACG trademarks, or other intellectual property. BACG retains all rights, titles, and interest in and to the Services, the associated software, technology, and documentation. As between BACG and Client, Client Data is the sole and exclusive property of Client and, other than the limited license to Client Data granted in Section 3, nothing in this Agreement shall serve to transfer to BACG any intellectual property right in the Client Data.
6. Third-Party Networks, Platforms, and Components.
Certain Services offered by BACG may be dependent on third-party software, networks, applications, platforms, messaging or communication services, or APIs (“Third Party Services”). These Third Party Services are not offered, controlled, or provided by BACG. In some cases, the Third Party Service may make changes to its service, or components thereof, or discontinue service without notice to BACG. Accordingly, BACG expressly disclaims any liability related to, or arising from, these Third Party Services, including Client’s use thereof, or any updates, modifications, outages, delivery failures, corruptions, discontinuance of services or termination of Client’s account by the Third Party Service. BACG is not responsible or liable for how the Third Party Service transmits, accesses, processes, stores, uses, or provides data to BACG. The client is solely responsible for complying with any Third Party Services terms and conditions. In order to integrate the Services with certain Third Party Services, Client may be required to provide Client’s or Client’s end-user access credentials for the Third Party Service in order to receive Client Data. In such cases, in order to provide the Service, BACG’s access must be approved (a) by the Client for all end users or content; or (b) by each individual end user.
7. Term and Termination.
7.1 Term. The Agreement shall commence on the Effective Date and shall remain in effect for the term specified in the Order Form measured from the Activation Date. This Agreement and all purchased Services will automatically renew for additional twelve (12) month terms. The initial twelve (12) month term plus any renewal terms are, collectively, the “Term.”
7.2 Termination for Breach. Either party may terminate this Agreement if the other party materially breaches its obligations hereunder and such breach remains uncured for thirty (30) days following the written notice of such breach to the non-breaching party. BACG reserves the right to suspend Client’s access to the Services in the event of any breach of this Agreement and shall not be liable for any damages resulting from such suspension. The foregoing is not in limitation of BACG’s right to suspend or terminate the Services due to Client’s nonpayment of Fees as provided for in Section 2.
7.3 Effect of Termination. Upon any termination or expiration of the Agreement: (a) all rights and licenses to the Services shall immediately terminate; and (b) upon request, each party shall return to the other or delete Confidential Information of the other party.
8. Limited Warranty and Disclaimers.
8.1 Proper Authority. BACG represents that it has the right and authority to enter into this Agreement, to grant to Client the rights hereunder and that the performance of its obligations under this Agreement will not breach or be in conflict with any other agreement to which BACG is a party.
8.2 Compliance with Laws. BACG warrants that it will comply with the laws and regulations applicable to BACG’s business in the performance of the Services.
8.3 Disclaimer. EXCEPT AS SET FORTH IN SECTIONS 8.1 AND 8.2, BACG MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY OTHER INFORMATION OR MATERIALS PROVIDED OR MADE AVAILABLE BY BACG OR THE INFORMATION AND RESULTS PRODUCED BY THE SERVICES, THE RESULTS OF CLIENT’S USE OF THE SERVICES. BACG HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BACG DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR SOFTWARE WILL BE AVAILABLE OR ERROR FREE. BACG SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BACG. BACG MAKES NO REPRESENTATION OR WARRANTY THAT THE USE OF THE SERVICES GUARANTEES LEGAL COMPLIANCE UNDER ANY FEDERAL, STATE, OR INTERNATIONAL STATUTE, LAW, RULE, REGULATION, OR DIRECTIVE.
9. Remedies and Limitation of Liability.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BACG’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER OR RELATING TO THE PROVISION OF SERVICES, NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY ACTION IS BROUGHT, SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES ACTUALLY RECEIVED BY BACG CLIENT FOR THE APPLICABLE SERVICES TO WHICH THE CLAIM RELATES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, TO DETERMINE IF THE LIMIT HAS BEEN REACHED. THE ABOVE LIMITATIONS OF LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FAVORABLE FEES BEING CHARGED BY BACG RELATIVE TO THE SERVICES DESCRIBED HEREIN AND ARE MATERIAL TERMS HEREOF. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE CLIENT’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10.2 BELOW.
10. Indemnification.
10.1 BACG IP Indemnity. BACG will defend Client against third-party claims, and indemnify and hold Client harmless against final judgments (including reasonable attorneys’ fees), arising out of a breach of a claim that the Services infringe any United States patent, trademark, or copyright, provided that (a) Client provides BACG with prompt written notice upon becoming aware of any such claim; (b) Client reasonably cooperates with BACG in the defense of the such claim; and (c) BACG has sole and exclusive control over the defense and settlement of any such claim. Notwithstanding the foregoing, BACG will have no liability of any kind to the extent any claim is based on or arises from (i) custom functionality provided to Client based on Client’s specific requirements; (ii) any modification of the Services by Client or any third party; (iii) the combination of Services with any technology or other services not provided by BACG; or (iv) the failure of Client to use updated or modified versions of the Services made available by BACG to avoid such a claim. If the Services are subject to a claim of infringement of the intellectual property rights of a third party, BACG may, in its sole discretion, either (a) procure for Client the right to continue to use the Services; (b) modify the Services such that they are non-infringing; or (c) if in the reasonable opinion of BACG, neither (a) or (b) are commercially feasible, then BACG may upon thirty (30) days prior notice to Client, terminate the applicable Service. The indemnification obligation contained in this Section 10, shall be the Client’s sole remedy, and BACG’s sole obligation, with respect to the claim of infringement.
10.2 Client Indemnity Client will indemnify and hold BACG harmless from any and all losses, claims, liability, cost, and expenses (including, without limitation, reasonable attorneys’ fees) arising from or related to (i) Client use of the Services and the results, outcomes, and information provided in connection therewith, (ii) Client’s breach of any term or condition of this Agreement, and (iii) any act or omission of Client.
11. General Provisions.
11.1 Export Restrictions. The Services, including any software, documentation, and any related technical data included with, or contained in the Services, may be subject to United States export control laws and regulations. Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing or using the Services. Without limiting the foregoing: (a) Client represents that it is not named on any United States government list of persons or entities prohibited from receiving exports; (b) Client represents that Client will not use the Services in a manner that is prohibited under United States Government export regulations; (c) Client will comply with all United States antiboycott laws and regulations; (d) Client shall not provide the Service to any third party, or permit any User to access or use the Service in violation of any United States export embargo, prohibition or restriction; and (e) Client shall not, and shall not permit any user or third party to, directly or indirectly, export, re-export or release the Services to any jurisdiction or country to which, or any party to whom, the export, re-export or release is prohibited by applicable law, regulation or rule.
11.2 U.S. Government End User Provisions. BACG provides the Services to federal government end users solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with BACG to determine if there are acceptable terms for transferring such rights and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
11.3 Assignment. The client may not assign this Agreement, in whole or in part, without BACG’s prior written consent which may be granted or withheld in BACG’s sole discretion. Any attempt by Client to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties' respective successors and permitted assigns.
11.4 Force Majeure. No failure or omission by the parties hereto in the performance of any obligation of this Agreement (other than Client’s payment of fees) shall be deemed a breach of this Agreement, nor shall it create any liability, provided the party uses reasonable efforts to resume performance hereunder if the same shall arise from any cause or causes beyond the reasonable control of the parties, including, but not limited to the following, which, for the purpose of this Agreement, shall be regarded as beyond the control of the parties in question: (a) acts of God; (b) acts or omissions of any governmental entity; (c) any rules, regulations or orders issued by any governmental authority or any officer, department, agency or instrumentality thereof; (d) fire, storm, flood, earthquake, accident, war, rebellion, insurrection, riot, strikes and lockouts; or (e) utility or telecommunication failures.
11.5 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New Hampshire, without regard to conflict/choice of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Strafford County, in the State of New Hampshire, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
11.6 Notices. Any legal notice under this Agreement will be in writing and delivered by personal delivery, express courier, or certified or registered mail, postage prepaid, and return receipt requested. Notices will be deemed to be effective upon personal delivery, one (1) day after deposit with express courier, and five (5) days after deposit in the mail. Notices will be sent to Client at the address set forth on the Order Form or such other address as Client may specify.
11.7 No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.
11.8 Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements, negotiations, and communications (both written and oral) regarding such subject matter.
11.9 Marketing. Client grants BACG the limited right to disclose that Client is a customer of BACG. BACG agrees to obtain prior written approval for any use of the Client’s name in any print marketing materials, press release, blog posts, case studies, or white papers.
11.10 Severability. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
11.11 Waiver. Failure of either party to insist on strict performance of any provision herein shall not be deemed a waiver of any rights or remedies that either party shall have and shall not be deemed a waiver of any subsequent default of the terms and conditions thereof.
11.12 Electronic Signatures and Communications. The parties agree that electronic signatures, whether digital or encrypted, by an Authorized User or a party’s authorized signatory are intended to authenticate such signatures and give rise to a valid, enforceable, and fully effective agreement. The parties expressly agree that any terms in Client’s purchase order forms, or electronic communications, other than orders placed by Client pursuant to Section 1.2, form no part of this Agreement.
11.13 Modifications. BACG may make modifications to this Agreement by posting the modifications to the weblink this Agreement located at. Client agrees to the updated version thirty days following posting of the modified terms, or upon execution of an Order Form referencing the updated version number and weblink.