Online Subscription and Use Agreement: TERMS & CONDITIONS
Effective on Jan 01, 2016
IMPORTANT – READ CAREFULLY:
BY COMPLETING THE ELECTRONIC SUBSCRIPTION PROCESS, YOU REPRESENT AND WARRANT THAT YOU: (i) ARE 18 YEARS OF AGE OR OLDER; (ii) ARE, OR ARE AUTHORIZED TO SIGN FOR AND BIND, THE CONTRACTING PARTY DEFINED BELOW AS “CUSTOMER;” AND (iii) HAVE READ, UNDERSTAND AND AGREE ON BEHALF OF CUSTOMER TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS ONLINE SUBSCRIPTION AGREEMENT. OTHERWISE, DO NOT CLICK THE ACCEPTANCE BUTTON TO PROCEED AND YOUR REGISTRATION PROCESS WILL BE DISCONTINUED.
THIS ONLINE SUBSCRIPTION AGREEMENT (the “Agreement“) is a legal and binding instrument entered into as of the date of electronic acceptance by Customer (the “Effective Date“) by and between Black Mountain Media and you the (“Customer“), the individual or entity entering into this Agreement.
- Fees; Payment. In consideration of the rights granted to Customer herein, Customer shall pay to Black Mountain Media, from time to time during the Term (defined below) of this Agreement, applicable services, and other fees (both initial and recurring) owed in connection with (the “Fees“). Customer may obtain a list of the then-applicable Fees from Black Mountain Media. The payment of all Fees shall be due within thirty (30) days following the earlier of (a) the date of Black Mountain Media’s invoice for payment of the Fees to Customer, or (b) the due date otherwise provided to Customer. Late payments will accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month. If any payments owed is more than thirty (30) days past due, Black Mountain Media shall have the right to suspend any or all of the Black Mountain Media Services until the account is made current. Customer shall be responsible for all collection costs, including costs incurred by Black Mountain Media in taking possession of documentation, plus attorney’s fees incurred with respect to such action.
- Term. The term of this Agreement (“Term“) will commence on the date (“Effective Date“) and unless terminated earlier in accordance with the Agreement, will remain in full force and effect for a period of twelve (6) months (“Initial Term“). Following the Initial Term, the Term of this Agreement will continue and automatically renew for additional, consecutive month to month intervals (each a “Renewal Term“) unless Customer cancels this Agreement in writing at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term, as the case may be. If Customer elects to terminate this Agreement prior to the expiration of the Initial Term or any Renewal Term, Customer shall pay an early termination fee equal to three (3) months of the Fees that Customer is then paying in connection with Black Mountain Media services. Notwithstanding the above, a termination of this Agreement is permissible without cause within the first thirty (30) days of this Agreement. SEO and social media are 6 month terms with setup fee, setup fee is voided if they accept 1 year term.
- Publicity. Customer shall not use the name or marks of Black Mountain Media or refer to or identify Black Mountain Media in advertising or publicity releases, promotional, or marketing correspondence to others without first securing the written consent of such parties. Customer grants Black Mountain Media the right to refer to and identify Customer in advertising or publicity releases, promotional, or marketing correspondence, including without limitation, to: (a) use Customer’s name in oral sales presentations, client lists, press releases, brochures, marketing materials, and financial reports indicating that Customer is a customer of Black Mountain Media, and (b) disclose the terms of this Agreement, or any part thereof, to potential investors or acquirers of for purposes of complying with the disclosure requirements of federal and provincial laws.
- Confidentiality. Customer acknowledges and agrees that Black Mountain Medias Services and all portions thereof and all information are entrusted to Customer in confidence to use only as expressly authorized in this Agreement. Customer shall, and shall cause its employees and other third parties, including its independent contractors, representatives, affiliates, and agents, who, with the express consent of Black Mountain Media, as applicable, have access to any Proprietary Materials and Information to, (a) keep all Proprietary Materials and Information confidential and not disclose or permit access to the Proprietary Materials and Information to any person or entity other than its employees for the purpose of attaining the objects of this Agreement, and (b) not use the Proprietary Materials and Information for any purpose other than as expressly permitted herein. Customer shall be required to apply the same standard of care that it uses with respect to its own valuable confidential information, and Customer represents that it uses commercially-reasonable efforts at all times to protect such information. Customer shall promptly notify Black Mountain Media in writing of any unauthorized knowledge, possession, or use of the Proprietary Materials and Information of which it becomes aware.
- LIMITATION OF LIABILITY.
- IN NO EVENT SHALL BLACK MOUNTAIN MEDIA OR CUSTOMER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY OTHER PARTIES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF USE, TRADING LOSSES, LOSS OF SAVINGS, BUSINESS INTERRUPTION, OPPORTUNITY, LOSS OF DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATED TO BLACK MOUNTAIN MEDIA SERVICES, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING. CUSTOMER AGREES THAT IT SHALL USE THE PERFORMANCE REPORTS REPORTING DATA FOR BUSINESS BENCHMARKING ONLY, AND NOT FOR OFFICIAL, GOVERNMENTAL, OR FINANCIAL AUDITING OR REPORTING.
- NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND REGARDLESS OF THE CAUSE OR FORM OF ACTION (WHETHER BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE), ANY PARTY’S LIABILITY TO THE OTHER FOR DAMAGES SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES, AND SHALL NOT EXCEED THE AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER FOR THE AFFECTED BLACK MOUNTAIN MEDIA SERVICES DURING THE MONTH IN WHICH THE CLAIM FIRST ACCRUED. MULTIPLE CLAIMS WILL NOT EXPAND THE AGGREGATE LIMIT DESCRIBED IN THIS SECTION.
- CUSTOMER’S SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY LICENSOR THAT LICENSOR IS UNABLE TO CURE FOLLOWING RECEIPT OF WRITTEN NOTICE FROM CUSTOMER AND THE LONGER OF (A) 90 DAYS, OR (B) A REASONABLE TIME PERIOD REQUIRED TO CURE SUCH BREACH, SHALL BE THE TERMINATION OF THE AGREEMENT AND A REFUND OF THE UNEARNED, PRORATED PORTIONS OF THE FEES PAID BY CUSTOMER CUSTOMER HEREBY WAIVES ALL OTHER RIGHTS OR REMEDIES
- NO CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT MAY BE ASSERTED MORE THAN ONE (1) YEAR AFTER THE FIRST OCCURRENCE FIRST GIVING RISE TO THE CLAIM.
- Equitable Relief; Irreparable Harm. Customer agrees that in the event of any such breach, Black Mountain Media will have the right to seek injunctive or other equitable relief against any continuing or further breach by Customer, without any obligation to post a bond or the necessity of proving actual damages. This right to injunctive or other equitable relief will be in addition to any other right that Licensor may have under this Agreement, or otherwise in law or in equity.
- Termination. Licensor shall have the right to terminate this Agreement with respect to some or all of Black Mountain Media Services upon the occurrence of the following: (a) Customer defaults in the performance of any of Customer’s obligations under this Agreement involving the payment of money or Fees, and the same shall not be cured by Customer within ten (10) business days after written notice to Customer; (b) Customer defaults in the performance of any of Customer’s obligations under this Agreement or breaches any restriction imposed on it by this Agreement, other than the payment of money or Fees, and Customer does not commence the cure the same within ten (10) business days after written notice to Customer, and such default or breach is not thereafter cured within thirty (30) days; (c) a receiver is appointed or one or more creditors takes possession of all or substantially all of the assets of Customer, or Customer shall make a general assignment for the benefit of creditors, or resolves to go into voluntary liquidation; or (d) for any reason, or no reason, upon at least thirty (30) days prior notice to Customer.
- Effect of Termination. In the event of the expiration or termination of this Agreement for any reason: (a) Agreement shall terminate and Customer may no longer use the Services for which the termination occurred; (b) with respect to the termination services shall immediately be shut down; (c) Customer shall not be relieved of any of its obligations which have accrued on or prior to the date of expiration or termination of this Agreement; (d) Customer shall not be entitled to any refund of any payments or Fees paid by Customer, except for the unearned, prorated portions of the Fees paid by Customer if the termination is undertaken by Licensor
- Assignment. Licensor may freely assign its rights hereunder without any requirement to provide notice to, or obtain the consent of, Customer. Customer may not assign its rights or delegate its duties hereunder without first securing the permission to do so from Black Mountain Media, which permission may be withheld at the sole discretion of Black Mountain Media. For purposes of this section, Customer shall be deemed to have assigned this Agreement if there is, in the aggregate, a change of ownership of twenty-five percent (25%) or more of the ownership interests of Customer or a merger or combination of Customer with another entity of business, whether Customer is the surviving entity or not. Any such attempted conveyance shall be void and shall constitute a default entitling Black Mountain Media to terminate this Agreement. Notwithstanding the foregoing, upon payment by Customer of a reasonable transfer fee, this Agreement may be assigned by Customer to a purchaser of all or substantially all of its business upon the prior written consent of Black Mountain Media, such consent not to be unreasonably withheld.
- Choice of Law and Forum. This Agreement shall be interpreted, and all disputes arising hereunder shall be resolved, in accordance with British Columbia Canadian law. To the extent recourse to a court is allowed hereunder, Customer and Black Mountain Media agree that jurisdiction of any claim or suit hereunder shall be brought and heard in the courts located within the Kelowna, BC Canada. All parties hereby submit to the exclusive personal jurisdiction of such courts.
- Arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement or breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration, before a sole arbitrator, in Kelowna, British Columbia Canada.
- Attorney’s Fees. If any action or proceeding (including arbitration) is brought in connection with this Agreement, the prevailing party shall be entitled to its attorney’s fees and other costs and expenses incurred in such action or proceeding, including any appeals or petitions, and enforcements of decisions and judgments therefor.
- Notice. Any notice or other communication required or permitted to be given to any party hereunder shall be in writing and shall be deemed to have been properly given and effective as of the date of delivery, if delivered in person, or by email (with electronic confirmation of receipt and mailing a copy) or five (5) days after mailing by registered or certified mail, postage paid, to the other party at the following addresses: (a) 158 Poonian Court, Kelowna BC, Canada, V1X 7Y9 and (b) if to Customer: to the address given by Customer to Black Mountain Media on the order form, invoice, or other document (written or electronic) specifying Customer’s address. Any party may change its address during the Term of this Agreement by delivering written notice of the same to the other parties.
- Waiver. No delay or omission by any party hereto to exercise any right occurring upon any noncompliance or default by any other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by any of the parties hereto of any of the covenants, conditions, or agreements to be performed by the others shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained.
- Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable any other part of this Agreement, but the Agreement shall be construed as not containing the particular provision or provisions held to be invalid or unenforceable.
- Successors and Assigns. This Agreement shall be binding upon and shall insure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Force Majeure. Licensor will not be liable for, or be considered to be in breach or default of this Agreement, on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control. Licensor may suspend or terminate provision of any service as a result of any such cause or condition.
- Entire Agreement. This Agreement sets forth the entire, final, and exclusive agreement between the parties hereto as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties. Any terms set forth on a purchase order or other written documentation from Customer shall be considered void and of no force and effect. This Agreement may be modified only pursuant to a writing executed by authorized representatives of Customer and Black Mountain Media.
- English Version; Interpretation. The original version of this Agreement is in the English language. Any discrepancy or conflicts between the English version and any other language version will be resolved with reference to and by interpreting the English version. This Agreement shall be construed in accordance with its fair meaning with no one party being considered the draftsperson. As used herein, the term “include” and “including” shall not be limiting and shall mean “including but not limited to”. Where applicable the singular of any word or term shall include the plural of such word or term and vice versa.