- SAAS SERVICES
- For purposes of these SaaS Terms of Service (“Terms,” and together with the Order Form(s) entered into by Black Crow AI, Inc. (“Black Crow”) and the customer indicated on the Order Form (“Customer”) in connection herewith, the “Agreement”), the term “Services” shall mean the services for which Customer obtains a subscription (“Subscription”) pursuant to the Order Form(s), which may include Black Crow AI predictions, Target AI and any other use case indicated on the applicable Order Form(s).
- RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Black Crow or authorized within the Services); use the Services or any Software for the benefit of a third party.
- Customer represents and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Black Crow against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Black Crow has no obligation to monitor Customer’s use of the Services, Black Crow may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
- Customer will provide Black Crow with such cooperation, assistance, and support: (a) in connection with the marketing and promotion of the Services; and (b) as needed for Black Crow to provide the Services to Customer hereunder, as may be reasonably requested by Black Crow from time to time.
Subject to the terms and conditions of the Agreement, Black Crow hereby grants Customer a limited, non-exclusive, revocable, non-transferable license, without any right to sublicense, to access and use the Services.
- CONFIDENTIALITY; PROPRIETARY RIGHTS
- Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (the “Proprietary Information” of the Disclosing Party). Proprietary Information of Black Crow includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Black Crow to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information; and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public; (ii) was in its possession or known by its prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; (iv) was independently developed without use of any Proprietary Information of the Disclosing Party; or (v) is required to be disclosed by law.
- Black Crow and Customer shall each fully comply with all applicable data protection laws, regulations and rules and industry privacy guidelines (e.g., the Digital Advertising Alliance code in the U.S.) of each country in which it has users, which may include the General Data Protection Regulation ("GDPR"), if applicable. In connection with the foregoing, the parties agree to the terms of the: (a) Standard Contractual Clauses applicable to the GDPR, as set forth on Attachment 1 to this Agreement which is available here: https://www.blackcrow.ai/GDPR and (b) Standard Contractual Clauses applicable to the UK GDPR, as set forth on Attachment 2 to this Agreement which is available here: https://www.blackcrow.ai/UKGDPR. Black Crow and Customer shall each indemnify, defend, and hold harmless the other from and against third party Losses resulting from any third party Claim arising out of any breach of this Section 4 by the indemnifying party.
- Black Crow and Customer shall each fully comply with the California Consumer Privacy Act, if applicable. Black Crow further agrees that: (a) it shall not collect, retain, process, share or otherwise use Customer Data except for performing the Services unless as required by law or a government authority (in which case Black Crow shall use its best efforts to notify Customer before such disclosure or as soon thereafter as reasonably possible); (b) it shall act as a service provider and shall not sell Customer Data; (c) it shall take reasonable steps as a service provider to ensure that the transfer of Customer Data is not a sale of personal information; (e) except for approved sub-processors, it shall only transfer Customer Data to a third-party as specifically directed by Customer. Any sub-processors will be permitted to obtain Customer Data only to deliver the Services Black Crow has retained them to provide and are prohibited from using Customer Data for any other purpose. For the purposes of this Section 4.4, “sale”, “service provider” and “personal information” are as defined under the California Consumer Privacy Act and “approved sub-processors” means a third-party entity that processes data on behalf of and as specifically directed by Black Crow pursuant to a written contract and is thereby bound by obligations that are no less onerous than the obligations set forth in Attachment 1 to these Terms.
- Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Black Crow shall own and retain all right, title and interest in and to: (a) the Services and Software, all improvements, enhancements or modifications thereto; (b) any software, applications, algorithms, inventions or other technology developed in connection with Implementation Services or support; and (c) all intellectual property rights related to any of the foregoing.
- PAYMENT OF FEES
- Customer will pay Black Crow the then applicable fees described in the Order Form for the Subscriptions and Services in accordance with the terms therein (“Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth in the Order Form or otherwise requires the payment of additional fees (per the terms of the Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein. If Customer believes that Black Crow has billed Customer incorrectly, Customer must inform Black Crow no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Black Crow’s customer support department (firstname.lastname@example.org)
- All local taxes and duties such as Withholding Tax, Value Added Tax (VAT), Goods and Services Tax (GST), Customs and Excise duties and all such local taxes as applicable shall be borne by Customer. The Fees are payable to Black Crow net of all such local taxes and duties.
- TERM AND TERMINATION
- In addition to any other remedies it may have, either party may also terminate the Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of the Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability.
- WARRANTY AND DISCLAIMER
Each of Customer and Black Crow hereby represents and warrants to the other that: (a) it has the legal capacity and corporate right, power and authority to enter into, deliver and fully perform under the Agreement; and (b) neither the execution, delivery, nor performance of the Agreement will result in a violation or breach of any contract, agreement, order, judgment, or decree to which it is bound. EXCEPT AS MAY BE EXPRESSLY STATED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY WARRANTY OR CONDITION ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. BLACK CROW DOES NOT WARRANT THE RESULTS OF THE SERVICES, INCLUDING THE NUMBER, TIMING OR COMPLETION OF CLICKS OR IMPRESSIONS, OR CPC VALUES. BLACK CROW DOES NOT WARRANT THAT THE SERVICES PROVIDED BY BLACK CROW ARE ERROR-FREE OR THAT CUSTOMER WILL BE ABLE TO OPERATE OR RECEIVE ANY SERVICE WITHOUT PROBLEMS OR INTERRUPTIONS.
8.1 Customer shall indemnify, defend, and hold harmless Black Crow, its parent and subsidiary companies and their respective representatives, successors and permitted assigns from and against any and all third party damages, liabilities, costs, penalties and expenses, including reasonable attorneys' fees, (collectively, "Losses") resulting from any claim, judgment or proceeding (each, a "Claim") brought by a third party to the extent arising out of: (a) the infringement of any patent, copyright or trademark, or misappropriation of any trade secret or violation of any other intellectual property or proprietary right of any third party by any Customer Website; (b) any slander, libel, or defamation contained on or within any Customer Website; or (c) violation of any applicable laws, rules and regulations by any Customer Website.
8.2 Black Crow shall indemnify, defend, and hold harmless Customer, its parent and subsidiary companies and their respective representatives, successors and permitted assigns from and against any and all Losses resulting from a Claim brought by a third party to the extent arising out of: (a) the infringement of any patent, copyright, or trademark, or misappropriation of any trade secret or violation of any other intellectual property or proprietary right of any third party by any Service; or (b) violation of any applicable laws, rules and regulations by any Service. If Customer’s use of any Service is, or in Black Crow’s opinion is likely to be, subject to a lawsuit (including any claim for equitable relief) alleging the type of infringement, misappropriation or violation specified above, or if required by settlement, Black Crow may, in its sole discretion: (i) modify the relevant Service so as to be non-infringing but with substantially equivalent functionality; (ii) procure for Customer the right to continue using the relevant Service; or (iii) if Black Crow reasonably determines that options (i) and (i) are commercially impracticable, terminate the Agreement upon written notice to Customer with respect to such Service.
8.3 Each party’s obligation to indemnify the other party hereunder will be conditioned upon the indemnified party promptly notifying the indemnifying party in writing of any such Claim (however, failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its obligations hereunder, except to the extent the indemnifying party has been damaged thereby), promptly tendering the control of the defense and settlement of any such Claim to the indemnifying party (at the indemnifying party’s expense and with the indemnifying party’s choice of counsel), and cooperating fully with the indemnifying party in defending or settling such claim including providing any information or materials necessary for the indemnifying party to perform the foregoing. The indemnifying party will not enter into any settlement or compromise of any such Claim, which settlement or compromise would result in any financial liability to, or require any admission of fault by, the indemnified party without the indemnified party's prior consent, which will not be unreasonably withheld.
THIS SECTION 8 SETS FORTH EACH PARTY’S SOLE LIABILITY AND THE OTHER PARTY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
- LIMITATION OF LIABILITY
EXCEPT FOR ITS OBLIGATION TO PAY LOSSES UNDER SECTION 8 FOR IP INFRINGEMENT CLAIMS OR FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 4(c), IN NO EVENT SHALL BLACK CROW BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR: (a) ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF; OR (b) DAMAGES IN THE AGGREGATE IN EXCESS OF BLACK CROW’S NET INCOME DERIVED FROM THE CUSTOMER WEBSITES UNDER THE AGREEMENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.
- DISPUTE RESOLUTION
In the event of any dispute, controversy or claim hereunder arising out of or relating to the Agreement, either party may, upon ten (10) days’ prior written notice to the other party, initiate binding arbitration in accordance with the then-current rules of the ICC governing the arbitration of commercial disputes. The parties shall select a mutually acceptable arbitrator within 20 days after the request of the party invoking this dispute resolution procedure. If the parties are unable to agree upon an arbitrator, the ICC shall select a qualified, independent arbitrator. Such arbitration will be held in New York. The decision of the arbitrator will be final and binding on the parties. Notwithstanding the foregoing, either party may seek injunctive, equitable or similar relief (without the requirement of arbitration) in any court having jurisdiction over the parties. The Agreement shall be governed by the laws of the State of New York, without regard to the conflicts of laws provisions thereof (other than Section 5-1401 of the New York General Obligations Laws).
- GENERAL PROVISIONS
The Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings, or agreements (oral or written), between the parties concerning the subject matter hereof. The parties are independent contractors and no agency, partnership, joint venture, or employer-employee relationship is intended or created hereby. The Agreement and the rights hereunder are not transferable or assignable without prior written consent of the non-assigning party, except to any successor to all or substantially all of such party’s assets, stock or business by sale, merger or otherwise. Any assignment or attempted assignment in contravention of this provision shall be null and void. The Agreement shall be binding upon, and inure to the benefit of, each party and their successors, heirs and permitted assigns. The waiver by either party of any default or breach of the Agreement must be in writing to be effective and shall not constitute a waiver of any other or subsequent default or breach. All notices required to be sent hereunder shall be in writing and shall be sent to the addresses set forth above or delivered in person. Any provision of the Agreement which is determined by a court to be unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only as to that provision and to the minimum extent necessary without invalidating the remaining provisions of the Agreement. Except for payment obligations, neither party will be responsible for failure or delay due to a cause beyond its reasonable control.