BLACKSQRL.COM SUBSCRIPTION SERVICES TERMS OF SERVICE AGREEMENT
PLEASE READ THE FOLLOWING SUBSCRIPTION SERVICES TERMS OF SERVICE AGREEMENT CAREFULLY. WHEN YOU USE OUR WEBSITE YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE SUBSCRIPTION SERVICES TERMS OF SERVICE AGREEMENT.
This Loch Harbour
Group, Inc. (“Company”, “We”, or “Us”) owned
website BlackSqrl.com (“Website”) Subscription Services Terms of
Service Agreement (“Agreement”) including the General Terms and
Conditions of Use available at
incorporated into this Agreement by reference, constitutes a legally binding
agreement made between you and Us, whether personally or on behalf of an entity
(“you” and in the case you are using the Website Services on behalf
of a company, entity, or other organization “you” includes you and that
entity) concerning your access to and use of the Website and the services,
products, tools, forums, and blogs available for use on the Website, and any
content you may create while using the Website (“Website Services”).
The Website Services are hosted in the United States.
When you use the Website Services or send e-mails to Us, you are communicating with Us electronically. You consent to receive communications from Us electronically. We will communicate with you by e-mail or by posting notices on this Website. You agree that all notices, disclosures and other communications that We provide to you electronically satisfy any legal requirement that such communication be in writing.
Company will only knowingly provide Website Services to users who are 13 years of age or older. The Website Services are not intended for users who are under the age of 13. By using the Website Services, you represent and warrant that:
The Company and you will enter into a separate order form or online order setting forth the specific Website Services you are licensing under this Agreement in addition to other details described in this Agreement (“Order”).
The Company may at its sole discretion modify the features and functionality of the Website Services and make commercially reasonable changes to the Website Services from time to time without prior notice to you. Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website Services (or any part thereof) with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website Services.
Any new features that augment or enhance the current Website Services, including the release of new tools and resources as well as updates, bug fixes, patches, workarounds, upgrades, and enhancements, shall be subject to this Agreement.
Subject to and conditioned on your payment of Fees and compliance with all other terms and conditions of this Agreement, Company hereby grants you a personal, limited, non-exclusive, revocable and non-transferable(except in compliance with Section 16) right to access and use the Website Services for your internal business purposes during the term set forth in the Order, solely for use by you and your employees, consultants, contractors, and agents (i) who are authorized by you to access and use the Website Services under the rights granted to you pursuant to this Agreement and (ii) for whom access to the Website Services has been purchased hereunder in accordance with the terms and conditions herein(“Authorized User”). The total number of Authorized Users will not exceed the number set forth in the Order.
You will receive a password and account designation upon completing the Website Services’ registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to:
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY RESERVES THE RIGHT TO, IN COMPANY’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, REMOVE CONTENT OR CONTRIBUTIONS, CANCEL ORDERS, DENY ACCESS TO AND USE OF THE WEBSITE SERVICES TO OR TERMINATE ACCOUNTS OF ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT OR OF ANY APPLICABLE LAW OR REGULATION.
Except as expressly authorized by Company in this Agreement, in connection with your use of the Website Services, you shall not and shall cause all Authorized Users not to:
You may not access or use the Website Services for any purpose other than as specifically granted to you in this Agreement or an Order. Certain activities, even if legal, may violate the common rules of etiquette governing Contributions use of the Website Services, as determined by Company in Company’s sole discretion. Company reserves the right, in its sole discretion to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates this provision. Prohibited activity includes, but is not limited to:
All reasonable measures are taken by Company to ensure that the Website is operational all day, every day. However, updates or technical issues may result in some downtime and accordingly Company will not be liable if the Website is unavailable at any time. Where possible, Company will try to give advance warning of maintenance issues that may result in Website Services down time but shall not be obliged to provide such notice. Technical support is only provided via email.
Company strives to ensure that the Website Services are available, secure and accurate. However, no system is perfectly secure, accurate or reliable. The Internet is an inherently insecure medium, and the reliability of hosting services, data providers, Internet intermediaries, your Internet service provider, and other service providers cannot be assured. When you use the Website Services, you accept these risks, and the responsibility for choosing to use a technology that does not provide perfect security, accuracy or reliability.
The Website Services may contain inaccuracies or typographical errors. The Website Services are provided on an “as is” and “as available” basis. Company cannot guarantee and does not promise any specific results from use of Website. No advice or information, whether oral or written, obtained by you from Company or the Website Services shall create any warranty not expressly stated herein.
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE SERVICES AND WEBSITE CONTENT AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND AND ASSUMES NO LIABILITY OR RESPONSIBILITY THAT:
In addition to the other rights set forth in this Agreement, Company reserves the right but does not have the obligation to:
You are entirely responsible for the content of, and any harm resulting from, any postings or materials you submit or upload to the Website (collectively, “Contribution”). When you create or make available a Contribution, you thereby represent and warrant that:
Company has no obligation to post the Contributions on the Website.
Company cannot control the nature of the content available on the Website. By operating the Website, Company does not represent or imply that Company endorses any blogs, Contributions or other content available on or linked to by the Website, including without limitation content hosted on third-party websites, or that Company believes Contributions, blogs or other content to be accurate, useful or non-harmful.
COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE .
Subject to the rights and permissions granted in this Section 5, as between you and Us, you are and will remain the sole and exclusive owner of all right, title, and interest in and to all of the information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from you or an Authorized User by or through the Website Services or that incorporates or is derived from the processing of such information, data, or content by or through the Website Services (“ Your Data ”), including all intellectual property rights relating thereto. You hereby irrevocably grant all rights and permissions in or relating to Your Data as are necessary or useful to Company and its subcontractors and personnel to enforce this Agreement and exercise Company’s rights and perform Company’s obligations under this Agreement.
For the avoidance of doubt, Your Data does not include information, data and other content that is derived by or through the Website Services, including usage data, and is sufficiently different from Your Data that it cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content or any other information reflecting the access or use of the Website Services by or on behalf of You or an Authorized User(“ Resultant Data ”). You agree that, as between you and Company, Company owns all such Resultant Data. We may further share Resultant Data with our affiliates and third party providers to fulfill our contractual obligations such as software license consumption and reporting. We may use and disclose Resultant Data for any purpose.
In consideration for the rights granted by Company under this Agreement and provision of the Website Services, you shall pay Us the fees in the amounts and in the manner set forth in the Order (“Fees”). Orders may be modified from time to time by written agreement of you and the Company. You acknowledge that Company reserves the right to change its Fees from time to time in its sole discretion. Company will automatically renew your monthly, quarterly, or annual Website Services at the then-current rates, unless the Website Services are cancelled or terminated under this Agreement. Additional cancellation or renewal terms may be provided to you on the Website for the Website Services.
Any amounts not paid when due will accrue interest at the lesser of one and one-half percent (1.5%) per month, or the maximum rate allowed by law. If you have not paid all Fees when due, Company has the right to suspend or cancel its provision of the Website Services until full payment is received, including any late payment charges. You agree to pay costs and fees, including, but not limited to, attorney’s fees We incur to collect an unpaid balance from you. Unless otherwise stated in an Order, all Fees are exclusive of out-of-pocket expenses. If Company terminates your use of the Website for breach of this Agreement, you will not be entitled to any refund of any portion of the Fees.
Unless Company notifies you otherwise in writing, the payment terms in this Section 6.2 apply for all Website Services.
All Fees referenced under this Agreement will be shown, invoiced ,and payable in U.S. Dollars. You must pay with one of the following:
Returned checks, payment by phone, paper bills, and other fees due to your choice of payment method or billing receipt may be subject to additional fees.
Should you authorize payment for Website Services by credit card or by debiting a bank account, no additional notice to or consent from you is required before We invoice the credit card or debit the bank account for all Fees due to Us.
If your payment and registration information contained on or provided with an Order is not accurate, current, and complete and you do not notify Us promptly when such information changes, We may suspend or terminate your account and refuse your use of the Website Services.
If you do not notify Us of updates to your payment method (e.g., credit card expiration date), to avoid interruption of your access to the Website Services, We may participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information; provided that you authorize Us to continue billing your account with the updated information that We obtain.
Regardless of the reason why a credit or debit or PayPal payment is retracted by a bank or financial institution, a $25.00 NON-REFUNDABLE chargeback fee will be assessed to you for each chargeback Company receives related to any payment method associated with your use of the Website Services. This fee is in addition to any monies owed by you and any fees assessed by the bank or financial institution. This fee will not be waived. Upon receipt of any chargeback, Company will immediately, without prior notice, re-assess the related charges and suspend your access to the Website Services until such time as you have fully complied with the instructions set forth in Company’s notice to you regarding the chargeback. Company may refuse to allow credit or debit, PayPal or automated payment from you in the future. Upon Company’s receipt of any third chargeback, Company will immediately, without prior notice, terminate all active Orders and your access to the Website Services; Company may also collect or attempt to collect payment of the outstanding amount owed (including all associated fees) from any alternate payment methods on file for you.
Fees do not include sales, use, value added, duties or other excise tax. You shall pay all taxes invoiced by Company at any time or, if paid by Company, reimburse Company for all taxes based on the purchases made under this Agreement, including taxes assessed after a tax authority audit after the effective date of an Order. You shall also pay any interest or penalties assessed on such taxes so long as such interest or penalties are not due to Company’s failure to properly report the sale to the applicable taxing authority or to properly invoice you. To the extent you are or believe you are exempt from payment of certain taxes, you shall provide to Company a copy of a valid exemption certificate. Company will give effect to all valid exemption certificates in the next full billing cycle following receipt of the certificate from you, but only to the extent Company is permitted to do so under applicable law. Notwithstanding the foregoing, in the event that your exemption certificate is or becomes invalid during the term of this Agreement, and Company is assessed or held responsible for additional taxes, penalties or late charges, you will be responsible for all such amounts in accordance with this Section 6.4. You agree to hold Company harmless from all claims and liability arising from your failure to report or pay any such taxes, duties or assessments for which you are properly notified by Company. You will have no liability for any taxes based upon Company’s gross revenues, net income, or its status as an employer.
You may cancel an Order with Us without further obligation, except for any amount due for the balance of the billing period in which you cancel your account, by following the methods set forth in Section 8; however, refunds for pre-paid Website Services are at Company’s discretion.
Any software associated with the Website Services is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You acknowledge and agree that Company or its licensors own and will retain all intellectual property rights, in and to the Website Services and any enhancements, updates or other modifications thereto made by any entity. You agree any updates, patches, bug fixes, workarounds, upgrades and enhancements to the Website Services will be the sole and exclusive property of Company, subject to use by you in accordance with the terms and conditions of this Agreement and any applicable Order. You acknowledge that the rights granted under this Agreement do not provide you with title to or ownership of the Website Services, but only a right of limited use under the terms and conditions of this Agreement.
The content on the Website, except for all Contributions, including without limitation, the text, software, scripts, graphics, photos, sounds, interactive features and the like and the trademarks, service marks and logos contained therein (“ Website Content ”), are owned by or licensed to Company, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Website Content is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Company reserves all rights not expressly granted in and to the Website and the Website Content. You agree to not engage in the use, copying, or distribution of any of the Website Content other than expressly permitted by Company, including any use, copying, or distribution of third parties’ materials obtained through the Website for any commercial purposes. If you download or print a copy of the Website Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Website Content or enforce limitations on use of the Website or the Website Content.
You will retain ownership of the Contributions that you contribute and upload to the Website. By making a Contribution to the Website, you hereby grant to Company a perpetual, irrevocable, non-exclusive, fully-paid, royalty-free, transferable, sublicensable , and worldwide license to use, modify, create derivative works of, publicly perform, publicly display, reproduce, make and have products made, sell and offer for sale, import, rent, resell and distribute such Contribution through the Website, in all media now known or hereafter created and in any other manner in Company’s sole discretion.
If any users send Us any suggestions, enhancement request, recommendations or other feedback (“Feedback”) regarding the Website Services, you hereby grant Company an exclusive, unlimited, irrevocable, perpetual, worldwide, transferable, subliscenable , and royalty-free license to use any such Feedback for any purpose without any obligation to you.
If you have reason to believe that your work has been copied in a manner that constitutes copyright infringement, you may request removal of those materials (or access to them) by submitting a written notification to our copyright agent designated below that contains the information required under the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (the “ DMCA ”). Under the DMCA, the written notice must include substantially the following :
Our designated copyright agent to receive DMCA notices is:
Loch Harbour Group, Inc.
ATTN: Contracts Department
6121 Lincolnia Road
Alexandria, VA 22312
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Website or the Website Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
You may not post, modify, distribute or reproduce in any way any copyrighted materials, trademarks or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. Company will terminate the account and access rights of any repeat infringer.
This Agreement shall enter into force upon the earlier of the effective date of an Order or the beginning of your use of the Website Services. The initial term is set forth in an Order and upon expiration, this Agreement will be automatically renewed with successive renewal terms at Company’s then current terms and conditions unless a party provides notice of its intent not to renew at least 15 days before the end of the then-current term . This Agreement shall remain in full force and effect while you use the Website Services or are an Authorized User.
Upon termination of an Order or this Agreement for any reason, Company shall be entitled to permanently delete and destroy all copies of Your Data within a timeframe reasonable relating to the back-up and administrative procedures applied by Website from time to time.
You may terminate your use of the Website Services at any time, for any reason, by communicating in writing that you wish to terminate this Agreement, or by following other termination procedures made available on the Website. Company may terminate your use or participation at any time, without warning.
Subject to the limitations and other provisions of this Agreement , the representations and warranties of the parties as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination of this Agreement. All other provisions of this Agreement will not survive the expiration or earlier termination of this Agreement.
IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES, ARISING FROM YOUR USE OF THE WEBSITE OR THE WEBSITE SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE WEBSITE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
You agree to defend, indemnify and hold harmless Company and its affiliates and its and their directors, officers, employees, agents, representatives, licensors, suppliers, service providers, other contractors, successors, and assigns (collectively, “Company Indemnified Parties”) from and against any and all claims, actions, demands, causes of action and other proceedings (“Claims”) arising out of or relating to:
The Company Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Indemnified Claim. You may not settle any Indemnified Claim without the prior written consent of the concerned Company Indemnified Parties.
You acknowledge that the export of the Website Services , technical data or other commodities is or may be subject to export or import control and you agree that any Website Service , technical data or other commodities or the direct or indirect product thereof will not be exported (or re-exported from a country of installation) directly or indirectly, unless you obtain all necessary licenses from the U.S. Department of Commerce or other agency as required by law.
Neither party will be liable for, or be considered in breach of or default under this Agreement , on account of any delay or failure to perform as required by this Agreement as a result of any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the effective date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
This Section 13 applies to any Website Services you license hereunder to use on behalf of a unit or agency of the U.S. Government, its agencies or instrumentalities (“U.S. Government”) or where you obtain such licenses directly or indirectly on behalf of a unit or agency of the U.S. Government. The Website Services provided hereunder:
The U.S. Government’s use, duplication or disclosure of the Website Services are subject to the restrictions set forth by Company. Any Website Services used by, for, or on behalf of the U.S. Government is provided with LIMITED RIGHTS as set forth herein. Any software or tools embedded in Website Services used by or on behalf of the U.S. Government is provided with RESTRICTED RIGHTS set forth in herein. Use, duplication, or disclosure of data or software by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause at FARS 12.211 and 12.212(a) and/or Commercial Computer Software at DFARS 227.7202-1(a) or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Company.
Because Company does not and cannot be involved in user-to-user dealings or control the behavior of participants on the Website, in the event that you have a dispute with one or more Website users, you release the Company (and its agents and employees) from claims, demands and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
All disputes arising out of or relating to this Agreement (including its formation, performance, or alleged breach) or your access to or use of the Website Services, Website Content, Contributions and Website, including without limitation your or others’ downloading or consumption of Website Content or other materials available by means of the Website or third-party websites, your uploading Contributions to the Website, or your purchasing of goods or services from third parties, will be exclusively resolved under confidential binding arbitration held in Houston, Texas before and in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS” ). Notwithstanding the foregoing, Company will have the right to seek injunction relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third-party rights. In the event of litigation or to compel arbitration or to enforce an arbitration award under this Section 15, or to obtain an injunction under this Section 15, the parties hereby irrevocably consent and submit to the personal jurisdiction and venue of the state and federal courts located in Houston, Texas. This Agreement will be interpreted exclusively by Texas law.
This Agreement will be binding upon and inure to the benefit of the parties, and their respective successors and permitted assigns. Notwithstanding the foregoing, neither party shall assign or otherwise transfer this Agreement or any rights or obligations, in whole or in part, without the prior written consent of the other party; provided, that Company may transfer this Agreement, in whole (including together with the licenses granted to Company herein), to an affiliate or in connection with a merger, consolidation, sale of substantially all assets, or the like , without your prior written consent. Any purported transfer, assignment or delegation not consistent with the terms in this Section 16 is void and of no force or effect.
Company may modify this Agreement from time to time. Company will alert all users with whom it maintains e mail information of such modifications by means of an e-mail to their most recently provided e-mail address or by posting notices on this Website. Any and all changes to this Agreement will be reflected on the Website. You agree to be bound to any changes to this Agreement when you use the Website or the Website Services after any such modification is posted. It is therefore important that you regularly review this Agreement and keep your contact information current to ensure you are informed of any changes.
This Agreement and any Order constitute the entire agreement between you and Company regarding the use of the Website and Website Services. The failure of Company 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. This Agreement operates to the fullest extent permissible by law. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.