B2B BLACKLIST MONTHLY SUBSCRIPTION SERVICE AGREEMENT
This monthly subscription service agreement (the “Agreement”) sets forth the obligations and conditions between you (“Client”) and B2B Blacklist, LLC, a New Jersey limited liability company (“B2B Blacklist”), relating to your use of the services defined herein. Please read this Agreement carefully. This Agreement is a legally binding contact between Client and B2B Blacklist. Your use of the services is expressly conditioned on your acceptance of this Agreement. This Agreement governs all use of B2B Blacklist’s services and any associated data, both online and offline.
A. B2B Blacklist is the owner of certain proprietary database and web-based application Services known as B2B Blacklist. This database contains information gathered from other industry professionals and peers to be used for informational purposes only (the “Services”).
B. B2B Blacklist provides and sells subscriptions for Clients to access and use the Services via B2BBlacklist.com or any website notified to the Clients from time to time.
C. Client desires to use the Services for Client’s internal business purposes, including specifically use by Client’s employees and/or Agents (“Authorized Users”), pursuant to the terms and conditions set forth herein.
D. B2B Blacklist is willing to provide access to the Services for Client’s internal business use pursuant to the terms and conditions set forth herein.
E. B2B Blacklist and Client acknowledge and agree that this Agreement shall be effective and in force immediately upon the date that Client clicks the “I Agree” icon below (the “Effective Date”).
Now therefore, in consideration for the mutual promises contained herein and other good and valuable consideration, the parties agree as follows:
1. Services Subscription.
a. B2B Blacklist grants to Client and Client accepts from B2B Blacklist, a limited, non-exclusive, non-transferable right to access and use and permit Authorized Users to access and use the Services solely for Client’s internal business use. The Services shall not be used by Client or by Authorized Users for, or on behalf of, third parties that are not authorized under this Agreement. Client shall use its best efforts to ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement. Client acknowledges that its right to use the Services will be web-based only pursuant to the terms of this Agreement and the Services will not be installed on any servers or other computer equipment owned or controlled by Client or otherwise provided to Client.
2. Intellectual Property Rights.
a. Client acknowledges that all right, title, and interest in and to the Services and the Services, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “B2B Blacklist IP”), is, and at all times shall remain, the sole and exclusive property of B2B Blacklist.
b. Client shall not attempt, or directly or indirectly allow any Authorized User or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services and/or Services in any form or media or by any means.
c. The provisions of this paragraph 2 shall survive termination of this Agreement.
3. Subscription Fee.
a. Client shall pay to B2B Blacklist the subscription fee (the “Subscription Fee”) in the amount and for the duration that Client has entered and agreed to pursuant to the Membership page of B2B Blacklist’s website for this Agreement.
b. The Subscription Fee for the first Subscription Period (either month or year, as applicable) of the term of this Agreement shall be paid on the Effective Date. The Subscription Fee for all subsequent Subscription Periods of the term of this Agreement shall be paid to B2B Blacklist on the first day of each subsequent Subscription Period, pursuant to subsection d, below.
c. The amount of the Subscription Fee does not include any applicable taxes. Client is responsible for any and all applicable taxes.
d. Client shall provide a valid credit card, ACH payment system information, bank account information authorized for automatic bill paying, or other acceptable method of payment to B2B Blacklist and shall take all necessary steps to authorize automatic payment of the Subscription Fee. By agreeing to this Agreement, Client hereby authorizes B2B Blacklist to automatically charge said method of payment for all Subscription Periods during the term of this Agreement. If, for any reason, automatic payment shall be denied, then Services to Client shall cease and Client shall pay the applicable Subscription Fee, together with a $25.00 late fee, to B2B Blacklist within five (5) days of notice from B2B Blacklist to reinstate Services.
e. Any additional payment terms between B2B Blacklist and Client shall be agreed to in writing and set forth in an invoice, billing agreement, or other written document.
B2B Blacklist shall use commercially reasonable efforts to make the Services available on a 24x7 basis (twenty-four hours per day, seven days per week) during the Term, except for: (i) scheduled system back-up or other on-going maintenance as required and scheduled in advance by B2B Blacklist, or (ii) for any unforeseen cause beyond B2B Blacklist's reasonable control, including but not limited to internet service providers or communications network failures, denial of service attacks or similar attacks, or any force majeure events set forth in this Agreement. B2B Blacklist will monitor performance indicators on the systems and network infrastructure (its own and that of third party suppliers) in order to gauge the overall performance of its hosting services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Services.
5. Maintenance and Support.
B2B Blacklist shall maintain the Services and/or Services and provide all patches and fixes to the Services and/or Services at no additional cost. Provided, however, said maintenance shall not include any major releases of new versions of the Services, additional functionality, which B2B Blacklist, at its discretion, may provide at an additional cost as otherwise agreed between the parties.
The Term of this Agreement shall commence on the Effective Date and shall continue until terminated as provided herein. Client shall elect whether the term will consist of annual or monthly periods (each a “Subscription Period”). The Agreement shall automatically renew for subsequent Subscription Periods unless either party provides written notice of its election not to renew this Agreement at least fifteen (15) days prior to end of the then-current Subscription Period or otherwise terminates this Agreement pursuant to the terms of this Agreement. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Client shall immediately terminate, and the Client shall cease using the Services and shall prohibit Authorized Users from using the Services.
Client shall be in default of this Agreement if Client fails to make any payment when due and fails to cure said default within five (5) days after receipt of written notice thereof from B2B Blacklist. In addition to the monetary breach described in the previous sentence, either party will be in default of this Agreement if the party is in material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice thereof from the non-breaching party. If a party is in default, the non-breaching party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement. In the event Client breaches or attempts to breach any of the provisions of this Agreement, B2B Blacklist shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach, Client hereby acknowledging the inadequacy of any remedy at law.
a. Client shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents and other representatives who require access in order to perform its obligations hereunder and who agreed to be bound by these obligations of confidentiality and non-disclosure.
b. Client shall not disclose or publicize the Confidential Information without the B2B Blacklist’s prior written consent.
c. Client shall use their reasonable efforts (but in no case less than the efforts used to protects its own proprietary information of a similar nature) not to disclose and not to use the Confidential Information for their own benefit or for the benefit of any other person, third-party, firm or corporation in a manner inconsistent with the purpose of this Agreement.
d. The terms of confidentiality and non-disclosure contained herein shall expire five (5) years from the date of the termination of this Agreement.
e. The restrictions on disclosure shall not apply to information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through fault of the Client; (ii) already known to the Client prior to disclosure pursuant to this Agreement; (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others; or (iv) required by law or court order to be disclosed.
9. Limited Warranty.
a. B2B Blacklist warrants that it has the power and authority to grant the subscription for the Services granted to Client hereunder. EXCEPT FOR THE WARRANTY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND B2B BLACKLIST DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABLITY OR FITNESS FOR A PARTICULAR PURPOSE.
b. Limitation of Remedy and Liability. Client represents that it accepts sole and complete responsibility for: (a) the selection of the Services to achieve Client's intended results; (b) use of the Services; (c) the results obtained from Services; and (d) the terms of any contracts between Client and Authorized Users. B2B Blacklist does not warrant that the Client’s use of the Services will be uninterrupted or error-free. Client shall not assert any claims against B2B Blacklist based upon theories of negligence, gross negligence, strict liability, fraud, or misrepresentation, and Client shall defend B2B Blacklist from any demand or claim, and indemnify and hold B2B Blacklist harmless from any and all losses, costs, expenses, or damages, including reasonable attorneys’ fees, directly or indirectly resulting from Client’s use of the Services, an Authorized User’s use of the Services, and/or any agreement between the Client and an Authorized User based on or in any way related to the Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL B2B BLACKLIST BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF B2B BLACKLIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In any event, under no circumstances shall B2B Blacklist be liable for any loss, costs, expenses, or damages to Client in an amount exceeding the Subscription Fee actually paid to B2B Blacklist by Client for the previous twelve (12) months.
a. Notice and Demands. Notice, demand, or other communication mandated to be given by this Agreement by either party to the other shall be sufficiently given or delivered if it is sent by registered or certified mail, postage prepaid, return receipt requested or delivered personally. Unless B2B Blacklist is otherwise notified in writing, the Client’s address for notice purposes shall be Client’s address provided as part of Client’s billing information.
b. Governing Law; Forum Selection. This Agreement shall be governed exclusively by the laws of the State of New York, without regard to its conflicts of laws principles. Any action under or concerning this Agreement shall be brought exclusively in the District Court of Kings County, New York. The parties irrevocably agree and consent that said forum is convenient and has jurisdiction to hear and decide any such action.
c. Compliance with Laws. Client shall use the Services in accordance with any and all applicable local, state, and federal laws.
d. Headings. The paragraph headings in this Agreement are for convenience only and they form no part of the Agreement and shall not affect the interpretation thereof.
e. Severability. If any provision of this Agreement shall be held illegal, void, or unenforceable, the remaining portions shall remain in full force and effect.
f. No Waiver. The delay or failure of either party to exercise any right under this Agreement or to take action against the other party in the event of any breach of this Agreement shall constitute a waiver of such right, or any other right, or of such breach, or any future breaches, under this Agreement.
g. Assignment. Client shall not assign or transfer this
h. No Partnership or Agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as an agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way.
i. Force Majeure. B2B Blacklist will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the B2B Blacklist's reasonable control, including but not limited to fire, flood, storm, act of God, war, malicious damage, failure of a utility service or transport or telecommunications network.
j. Complete Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Services, and supersedes any and all prior or contemporaneous understandings or agreements whether written or oral. No amendment or modification of this Agreement will be binding unless reduced to a writing signed by duly authorized representatives of the parties and such writing makes specific reference to this Agreement and its intention as an amendment hereto.