Primary Services Agreement
This Primary Services Agreement (the “Agreement”) is made by and between Black Glove, Inc., a Delaware corporation (“Company“), and customer (“Customer“).
RECITAL
Company desires to perform, and Customer desires to have Company perform certain services as described herein and applicable statements of work attached hereto.
NOW, THEREFORE, the parties agree as follows:
1. SERVICES
1.1 Black Glove will provide the services as described in one or more signed Statements of Work attached and subject to the terms of this Agreement (the “Services”). A “Statement of Work” shall mean (i) a signed Statement of Work between Customer and Black Glove for the purchase of the Services which incorporates this Agreement in the form attached hereto as Exhibit A (“Statement of Work”). In the event of a discrepancy arising between the Statement of Work and Agreement, the term outlined in the Statement of Work shall take precedence.
1.2 Customer is responsible for providing in a timely manner to Black Glove the items set forth as Customer Deliverables and Obligations set forth in the SOW. Customer represents and warrants that it owns the Customer systems and Customer Information or has the right to provide Black Glove with access to the Customer systems and Customer Information.
1.3 In the course of providing the Services, Black Glove may install on Customer’s systems third party software under a separate license agreement between the Customer and the owner of the software (“Installed Software”). No rights or licenses with respect to any intellectual property of Installed Software are granted under this Agreement. Customer represents and warrants that it possesses sufficient license rights in and to such Installed Software as may be necessary to authorize and enable the installation and use thereof by Black Glove as contemplated by this Agreement and any applicable Statement of Work.
1.4 Black Glove may resell and provide or otherwise make accessible to Customer certain Purchased Third Party Software that is owned by third parties (“Third Party Software Providers”), the use of which may be subject to additional or different terms set forth in the applicable license (“Third Party Licenses”). Customer agrees to be bound by and shall comply with the terms of the applicable Third-Party License as set forth in the applicable Statement of Work or otherwise provided to or made available to Customer.
1.5 Black Glove may facilitate the procurement and provisioning of equipment or hardware as set forth on the applicable SOW (“Hardware”) on behalf of Customer. Customer acknowledges that (i) Customer will prepay for any hardware purchased through Black Glove, (ii) third-party terms and conditions with respect to such Hardware may apply as set forth on the applicable SOW, and (iii) the time required to procure and provision hardware will vary on factors outside of Black Glove’s control related to but not limited to hardware availability, hardware order volume, complexity of provisioning, and the ultimate ship to address of goods. Customer will make hardware decisions with an understanding of items (i), (ii), and (iii) above.
2. CONFIDENTIAL INFORMATION
2.1 “Confidential Information” means all financial, business, operational, marketing or technical information disclosed by or for a party in relation to this Agreement whether disclosed in tangible, written, oral or electronic form, that is of a nature that should reasonably be considered to be confidential and proprietary. Without limitation, (a) all non-public product, pricing and technical information related to the Services shall be treated as Black Glove’s Confidential Information and (b) all Customer Information shall be deemed Customer’s Confidential Information for purposes of this Section 2. Confidential Information expressly excludes any information to the extent that a receiving party can demonstrate such information is (a) already known by it without restriction prior to receipt from the disclosing party, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by the receiving party without reference to or use of any of the disclosing party’s Confidential Information.
2.2 Except for the specific rights expressly granted by this Agreement, the receiving party shall not use, copy or disclose any of the disclosing party’s Confidential Information without disclosing party’s prior written consent. The receiving party shall use the disclosing party’s Confidential Information solely for the purpose of exercising its rights and performing its obligations hereunder. The receiving party shall only disclose Confidential Information to its employees, contractors and agents (“Representatives”) who have a need to know for the purposes of this Agreement and are bound by substantially similar confidentiality obligations and shall use reasonable care to safeguard the disclosing party’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its Representatives, as applicable. Promptly upon the disclosing party’s request at any time, the receiving party shall either return all of the disclosing party’s tangible Confidential Information or permanently erase all Confidential Information in electronic form and destroy all information, records, copies, summaries, analyses and materials developed therefrom. Neither party will be obligated to erase Confidential Information contained in an archived computer system backup made in accordance with such party’s backup, security and/or disaster recovery procedures, provided that such archived copy will (i) eventually be erased or destroyed in the ordinary course of such party’s data processing procedures and (ii) will remain fully subject to the obligations of confidentiality stated herein. Each party may disclose the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, however, that Black Glove may provide a copy of this Agreement (including without limitation SOWS) or otherwise disclose its terms on a confidential basis in connection with any financing transaction or due diligence inquiry.
2.3 Nothing herein shall prevent a party from disclosing this Agreement or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, the receiving party shall use commercially reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
2.4 Notwithstanding the provisions set forth in this Section 2, Black Glove is permitted to disclose that Customer is one of its customers to any third party at its sole discretion (including without limitation by including Customer’s name and logo in customer lists that may be made available on Black Glove’s website or in Black Glove’s marketing materials)
3. PROPRIETARY INFORMATION
3.1 If Customer Information includes personally identifiable information of Customer’s employees, agents, contractors and other users of the Customer systems (collectively, “Customer Users”), Black Glove will only access such information as reasonably necessary for its provisioning and delivery of the Services and as otherwise authorized by Customer.
3.2 From time to time, Customer will designate one or more Customer representatives as having the authority to take administrative actions with respect to the Services (“Authorized Customer Users”). Black Glove shall be entitled to rely on the instructions and/or other information provided by Authorized Customer Users or otherwise provided through the Black Glove account associated with Authorized Customer Users and may communicate with Customer Authorized Users regarding all aspects of the Services, the Customer Systems and Customer Information. Black Glove shall have no obligation to evaluate any such instructions or information or to identify or warn against the potential effects of such instructions. Black Glove shall not be liable for the results of any actions or inactions carried out in reliance on such instructions or information. It is the sole responsibility of Customer to have in place its own internal policies and procedures regarding Customer Users’ interactions with Black Glove and the Services.
3.3 Customer represents and warrants to Black Glove that (i) the Customer Information and other information provided to or accessed or used by Black Glove for the purposes set forth under this Agreement was lawfully acquired and provided to Black Glove without violating the rights of any parties, and (ii) such access by Black Glove and use will not violate the privacy rights or any other rights (statutory or otherwise) of the Customer Users or other parties. Black Glove may (but is not required to) suspend activity hereunder with respect to any actual or alleged breach of the foregoing representations.
3.4 Black Glove Information includes all Black Glove Confidential Information. Black Glove shall own every invention (whether or not patentable), know-how, copyrightable material or information conceived, developed or reduced to practice or tangible form by Black Glove in the performance of this Agreement and the Services (“Developments”) and all Intellectual Property Rights therein.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Customer retains all rights, title and interests in and to the Customer Information and all data, analyses and other results obtained from the Black Glove Services through its processing of Customer Information or access to the Customer Systems. Notwithstanding the foregoing, Customer acknowledges and agrees that Black Glove may (i) use and modify Customer Information and such data, analyses and other results for the purposes of providing the Services to Customer (ii) collect information and generate Aggregated Anonymous Data (as defined below), (iii) Black Glove is and will remain the sole and exclusive owner of all right, title and interest in and to all Aggregated Anonymous Data, including all intellectual property rights related thereto, ,and (iv) freely use and make available Aggregated Anonymous Data for Black Glove’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Black Glove’s current and future products and services) during the term of this Agreement and thereafter. “Aggregated Anonymous Data” means any of the following information that has been aggregated with other similar information of other Black Glove customers, and anonymized so that it does not reveal any personally identifying information or information identifying Customer: (a) information related to how Black Glove’s customers are using the Black Glove Services (b) information related to the performance of the Services, including the resolution to and the type, quantity, and cause of inquiries, requests, and/or incidents reported by Customer or Customer Users, and (c) any other information that provides insight into Black Glove’s business.
4.2 Black Glove retains all rights, title and interests in and to the Black Glove Information and all Developments.
5. PAYMENT OF FEES
5.1 Customer will be responsible for all fees specified in the applicable Statements of Work (“Fees”). Black Glove reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of each pre-paid term or at the end of the then-current prepaid renewal term, as applicable, upon thirty (30) days prior notice to Customer (which may be sent by email). All undisputed Fees must be paid net thirty (30) days from the date of invoice or the Services may be suspended or terminated. If any part of the Fees charged to Customer’s credit card or paid via ACH or similar electronic payment method are declined, reversed, charged back or for any other reason not paid in full via such electronic payment method, Black Glove shall have the right, exercisable in its sole discretion and without prejudice to any of its other rights or remedies under this Agreement, to either resubmit such charges to Customer’s form of payment or invoice Customer for the amount of such charges (with payment due within ten (10) days after receipt of invoice), in each case, plus a returned payment charge of $35 or the maximum permitted by applicable law, if less. Customer will inform Black Glove of any disputes related to invoice amounts within thirty (30) days of Customer’s receipt of invoice. If Customer does not inform Black Glove of any disputes related to invoice amounts within this thirty (30) day period, Customer will no longer have the right to dispute the amount and the amount will remain due and payable to Black Glove without exception. Unpaid Fees other than amounts disputed in good faith are subject to a finance charge of 0.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. In the event Black Glove must utilize a third-party collection agency to collect fees from Customer when Customer is delinquent in payment, Customer will reimburse Black Glove for all fees incurred with the third-party collection agency. Customer shall be responsible for all taxes imposed or based on the Services other than taxes based on Black Glove’s net income.
6. TERM; TERMINATION
6.1 Unless terminated earlier as provided below, this Agreement shall govern the SOW(s) that reference this Agreement and shall remain in effect until the last SOW expires or terminates hereunder or in accordance with the terms and conditions of the applicable SOW. Each Order Form shall remain in effect from the Start Date specified therein for a period equal to the term specified therein.
6.2 Either party may terminate this Agreement for any reason upon thirty (30) days’ written notice to the other party Customer will pay all undisputed, properly invoiced amounts for the Services up to and including the last day of the term of each SOW. Black Glove may temporarily suspend access to the Services if Black Glove in good faith believes that, as part of using the Services, Customer has violated a law. Black Glove will use commercially reasonable attempts to contact Customer in advance of suspension of service as described in this Section 6.2.
6.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, intellectual property ownership, warranty disclaimers, indemnification obligations, and limitations of liability.
7. LIMITED WARRANTY AND DISCLAIMER
7.1 Black Glove warrants that the Services will be performed in a professional manner consistent with industry standards. In the event the performance of the Services does not substantially conform to such standards, Customer shall provide written notice of non-conformance to Black Glove and Black Glove shall, at its option and as its sole obligation and as Black Glove’s sole liability and Customer’s exclusive remedy, reperform the Services at no additional charge, or, if it determines that the foregoing option is not commercially practical, terminate the applicable SOW with respect to the Services and issue a refund for any prepaid amounts for unused portions of the term. To the extent it is permitted to do so, Black Glove will pass through to Customer any third-party warranties in respect of the Hardware and/or Purchased Third Party Software as applicable.
7.2. Use of content, software, hardware, products, or services that are provided or supported by third parties (“Third-Party Content”) is subject to the applicable agreement between you and the Third-Party Content provider. Black Glove does not control or assume any liability for Third-Party Content. If there is a conflict between this Agreement and the Third-Party Content provider’s terms, this Agreement will control.
7.3 BLACK GLOVE DOES NOT WARRANT THAT THE SERVICES, HARDWARE, OR PURCHASED THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. OTHER THAN THE EXPRESS WARRANTY SET FORTH IN SECTION 7.1, THE SERVICES ARE PROVIDED “AS IS” AND BLACK GLOVE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, BLACK GLOVE (AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES) AND CUSTOMER SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (B) FOR ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE FEES PAID OR PAYABLE BY CUSTOMER TO BLACK GLOVE FOR THE BLACK GLOVE PLATFORM AND SUPPORT SERVICES IN THE 12 MONTHS PRIOR TO THE CLAIM GIVING RISE TO SUCH DAMAGES. IN ADDITION, NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL BLACK GLOVE (OR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES) BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY.
8.2 THE LIMITATIONS SET FORTH IN THIS SECTION 8 SHALL NOT APPLY TO (A) FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, (B) AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN SECTION 9, OR (C) TO ANY BREACH OF SECTION 2 (CONFIDENTIALITY).
9. INDEMNIFICATION
9.1 Customer will defend Black Glove and Black Glove’s officers, directors, employees, agents and representatives from all third- party claims that arise in connection with any breaches of Sections 1.2, 1.3, 1.4 and 3.3. Customer will pay all losses, damages, awards, penalties and/or settlement amounts finally awarded to such third party by a court of competent jurisdiction, or agreed to in a monetary settlement, with respect to any such claims. Customer shall have sole control over the defense and/or settlement of any claim subject to indemnification by Customer; provided, however, that Customer will not settle any such claim without the prior written consent of the indemnified party (such consent not to be unreasonably withheld, conditioned or delayed) unless the settlement requires only the payment of money and includes a full and unconditional release of all liability. Black Glove shall promptly notify Customer of any such claim and provide Customer with reasonable assistance in connection with any such claim.
9.2 Customer shall have no responsibility to defend or indemnify Black Glove for any claims under Section 9.1 to the extent the claim otherwise subject to indemnification results from the gross negligence, willful misconduct or breach of this Agreement by Black Glove.
10. MISCELLANEOUS
10.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2 Complete Understanding; Amendment. Both parties agree that this Agreement (including the Order Forms) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers, amendments and modifications must be in a writing signed by both parties.
10.3 Force Majeure. Neither Black Glove or Customer shall be held liable for failure of or delay of performance under this agreement if said failure or delay is due to a force majeure event such as but not limited to an act of God, pandemic, natural disaster, war, an act of terrorism, action of foreign adversaries, a labor strike, government sanction, or failure of utility services.
10.4 Assignment. This Agreement is not assignable, transferable or sublicensable by a Party except with prior written consent of the other Party, except that either party (without consent) may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). Any attempted assignment or delegation without such consent will be void. Black Glove may also subcontract performance of any Services provided that Black Glove will at all times remain responsible for the performance of such Services. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
10.5 No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party shall have any authority of any kind to bind the other party in any respect whatsoever.
10.6 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.7 Governing Law and Venue. This Agreement shall be governed by the laws of the United States and the State of Delaware without regard to its conflict of law provisions. Any disputes arising out of this Agreement shall be brought exclusively in the courts located in the State of Delaware. Solely with respect to breaches of Section 2 (Confidentiality), each party shall have the right to pursue injunctive or other equitable relief at any time from any court of competent jurisdiction. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.8 Independent Contractor. Black Glove agrees that it is engaged in a business distinct from that of Customer, is an independent contractor of Customer, shall at all times be an independent contractor of Customer, and nothing in this Agreement shall at any time be construed so as to create the relationship of employer and employee, principal and agent, partnership or joint venture as between Black Glove and Customer.
10.9 Solicitation of Employment. Because of the trade secret subject matter of Company’s business, Customer agrees that it will not solicit the services of any of the employees, consultants, suppliers or customers of Company for the Period of Consultancy and for six (6) months thereafter.