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This Master Subscription Agreement (this “Agreement”) governs Your free trial of the Services. If You purchase our Services, this Agreement will also govern Your purchase and ongoing use of those Services. By accepting this Agreement, either by clicking a box indicating Your acceptance or by executing an Order Form that references this Agreement, as directed by Us, You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a Company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its Affiliates. If You do not have such authority, or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use the Services.
This Agreement was last updated on March 9, 2016. This Agreement is effective between You and Us as of the date You accept this Agreement (the “Effective Date”).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Non-blackthorn.io Applications” means online applications and services and offline software products that are provided by entities or individuals other than Us, and that interoperate with the Services, including but not limited to those provided by salesforce.com (“salesforce.com”).
“Order Forms” means the documents for placing orders hereunder that are entered into between You and Us or any of our respective Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under an Order Form and made available by Us online via web pages designated by Us, including associated offline components, as described in the User Guide. “Services” include both Purchased Services and Services provided on a free trial basis. “Services” exclude Non-blackthorn.io Applications.
“User Guide” means the online user guide for the Services, accessible via web pages designated by Us, as updated from time to time.
“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business. Some of blackthorn.io’s applications are not sold on a “per-user” basis, such as DocumentLink or PayLink. For such applications, the Users clause does not apply.
“We”, “Us”, or "Our" means blackthorn.io, Inc., a Delaware corporation.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity
“Your Data” means all electronic data or information submitted by You to the Purchased Services.
2.1 Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the applicable Order Forms during each subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. Each Order Form entered into by You and Us is hereby deemed to be a part of this Agreement. In the event of any conflict between the terms of this Agreement and any Order Form, the terms of this Agreement will govern.
2.2 User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Purchased Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Purchased Services.
2.3 Our Responsibilities. We shall: (i) provide basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased; (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for (a) planned downtime (of which We shall give at least 8 hours notice via the Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific time), (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, telecommunication service provider failures or delays, utility or other infrastructure provider failures or delays, denial of service attacks, and (c) any unavailability caused by unaffiliated third parties, including, without limitation, salesforce.com, Stripe, Heroku, Facebook, LinkedIn, and Google; and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations. With regard to PCI DSS compliance, Stripe (www.stripe.com) as a payment gateway provider is PCI compliant (https://stripe.com/docs/security). payment360 (blackthorn | payments) utilizes Stripe as a gateway provider. blackthorn.io’s Salesforce applications are “native to Salesforce” and fall under the Salesforce security provisions (https://trust.salesforce.com/en/security/), as they’ve passed Salesforce’s security review process to be listed on the AppExchange.
2.4 Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We will not (a) modify Your Data, (b) disclose Your Data except (i) as compelled by law in accordance with the “Confidentiality: Compelled Disclosure” section below, (ii) in order to provide the Services hereunder, or (iii) as expressly permitted in writing by You, or (c) access Your Data except to provide the Purchased Services and prevent or address service or technical problems, or at Your request in connection with customer support matters. You acknowledge and agree that Your Data may be hosted and stored by salesforce.com and/or Our shared Mongo DB database.
2.5 Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with this Agreement, the User Guide, and all applicable laws and government regulations. You may not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. You agree not to use CRM functions other than those described in the Services help text even if Your account has access to them. If You require additional facilities of the salesforce.com CRM service, and You have not been referred to Us by salesforce.com for the purpose of purchasing Purchased Services, You agree to order these additional services directly from Us. If You are in any doubt as to what facilities You are permitted to use, You will consult Us for advice. We are not responsible for the “up-time” of third-party platforms, such as Amazon Web Services, Heroku, Salesforce, Stripe, or any other third-party platform. Should one of those platforms’ services fail to be “online” or be functioning properly, We are not responsible and are not liable for any damages any third-party outage may cause You.
2.6 Restrictions. You hereby represent and warrant to Us that You do not, directly or indirectly, compete with Us or Our business in any respect, and You hereby agree that You may not access the Services if the foregoing representation and warranty is untrue at any time, except with Our prior written consent, which consent may be withheld by Us in Our sole discretion. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, and You agree that you may only access the Services for a legitimate business purpose.
2.7 Reserving rights. You agree that you will not use the Service in connection with the following businesses, business activities or business practices including, but not limited to: IP Infringement, regulated or illegal products and services, Unfair, predatory, or deceptive practices, Products or services that are otherwise prohibited by our financial partners.
3. NON-BLACKTHORN.IO PROVIDERS
3.2 Non-blackthorn.io Applications and Your Data. If You install or enable Non-blackthorn.io Applications for use with the Services, You acknowledge that We may allow providers of those Non-blackthorn.io Applications to access Your Data as required for the interoperation and support of such Non-blackthorn.io Applications with the Services. We will not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-blackthorn.io Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-blackthorn.io Applications for use with the Services.
3.3 Integration with Non-blackthorn.io Applications. The Services may contain features designed to interoperate with Non-blackthorn.io Applications. To use such features, You may be required to obtain access to such Non-blackthorn.io Applications from their providers. If the provider of any such Non-blackthorn.io Application ceases to make the Non-blackthorn.io Application available for interoperation with the corresponding Services features on reasonable terms, We may cease providing such Services features without entitling You to any refund, credit, or other compensation.
4. FEES AND PAYMENT FOR PURCHASED SERVICES
4.1 User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
4.2 Invoicing and Payment. Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net 30 days from the invoice date, unless You dispute any such invoice in good faith by providing Us with written notice of Your intent to dispute and the facts and circumstances surrounding such dispute within 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
4.3 Overdue Charges. If any amounts invoiced hereunder are not received by Us by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
4.4 Suspension of Service. If any charge owing by You is 30 days or more overdue (except for any charges that are being disputed by You in good faith and in accordance with the terms of Section 5.2 and 5.5 hereof), We may, without limiting Our other rights and remedies, suspend Services until such amounts are paid in full, provided We have given You 10 or more days’ prior notice that Your account is overdue in accordance with the “Notices” section below.
4.5 Payment Disputes. We shall not exercise Our rights under the “Overdue Charges” or “Suspension of Service” sections above if You are disputing the applicable charges reasonably and in good faith and cooperating diligently to resolve the dispute.
5. PROPRIETARY RIGHTS
5.1 Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, and all modifications and improvements thereto, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2 Restrictions. You will not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for its own internal business purposes, (iv) reverse engineer the Services, (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services, or (vi) use the Services in any manner that is in violation of any applicable law or regulation.
5.3 Your Applications and Code. You, a third party acting on Your behalf, or a User may create applications or program code using the Services as permitted in the User Guide. In such cases, You authorize Us and Our service providers to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
5.4 Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
5.5 Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
5.6 Blackthorn reserves the right to use your company's logo for marketing purposes, such as its website, emails, or blog posts. Upon written request, Blackthorn will withhold use of any Customer marks.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes and other information disclosed by such party. Confidential Information (other than Your Data) will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of, or reference to, any Confidential Information of the Disclosing Party.
6.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and accountants [and salesforce.com] without the other party’s prior written consent.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Our Warranties. We represent and warrant that (i) we have validly entered into this Agreement and have the legal power to do so, (ii) the Purchased Services shall perform materially in accordance with the User Guide, (iii) subject to the “Integration with Non-blackthorn.io Applications” section above, the functionality of the Purchased Services will not be materially decreased during a subscription term, and (iv) the Purchased Services will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in the “Termination for Cause” and “Refund or Payment upon Termination” sections below.
7.2 Your Warranties. You represent and warrant that (i) You have validly entered into this Agreement and have the legal power to do so and (ii) that Your Data does not infringe or misappropriate the intellectual property rights of a third party.
7.3 Disclaimer. Except as expressly provided herein, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
8.1 Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party (i) alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law or (ii) arising out of Your breach of this Agreement in any material respect (each a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, and for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability), and (c) provide to You all reasonable assistance, at Your expense.
8.2 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
9. LIMITATION OF LIABILITY
9.1 Limitation Of Liability. In no event shall either party’s total liability arising out of or related to this Agreement, whether in contract or tort or under any other theory of liability, exceed the amount paid by You hereunder in the twelve months immediately preceding the events giving rise to the liability. The foregoing limit will not apply to Your payment obligations under the “Fees and Payment for Purchased Services” section above or for claims for fraud, willful misconduct, or intentional misrepresentation. We will not have any liability based upon or arising out of any actual or alleged defect in any technology products, including but not limited to
downtime of any third-party service or platform, hardware or software that is primarily caused by a third party, including, but not limited to, any third party hardware or software supplier, manufacturer or originator.
9.2 Exclusion Of Consequential And Related Damages. In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by applicable law.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
10.2 Term of User Subscriptions. User subscriptions for Purchased Services commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods of one year each, unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 10% of the pricing for the relevant Purchased Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
10.3 Termination for Cause. Either party hereto may terminate this Agreement for “Cause” (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.
10.4 Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
10.5 Surviving Provisions. The sections titled “Fees and Payment for Purchased Services,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Return of Your Data,” “Surviving Provisions,” (“Notices, Governing Law and Arbitration,” and “General Provisions” shall survive any termination or expiration of this Agreement.
11. GENERAL PROVISIONS
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. No person who is not a party to this Agreement shall have any right to enforce any term of this Agreement.
11.3 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
11.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or in any other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
11.7 Counterparts. This Agreement and any Order Forms may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
The installation of this AppExchange application acknowledges acceptance of this document on the day of installation.