Client Terms of Service

These Client Terms of Service (the “Client Terms”) describe your rights and responsibilities when using our online system (the “Services”). If you are a Client (defined below), these Client Terms govern your access and use of our Services. If you being invited to use the system as part of your work with a Client, the User Terms of Service (the “User Terms”) govern your access and use of the Services.

These “Client Terms” form a part of a binding “Contract”

These Client Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below) together form a binding “Contract” between Client and us. If any terms in the Client-Specific Supplement apply to Client (e.g., if Client is a U.S. government entity), those terms are also incorporated herein by reference and form part of the Contract. “We,” “our” and “us” refers to the applicable DarkBlack entity in the section entitled “Which DarkBlack Entity is Client Contracting With?” below.

Acceptance of Contract on behalf of “Client”

If you use our Services after being notified of a change to these Client Terms, you acknowledge your understanding of the then-current Contract and agree to the Contract on behalf of Client.

Defining “Client”

“Client” is the organization that you represent in agreeing to the Contract. This organization is the entity paying the fee for our Services.

Client Data

Individuals authorized by Client to access the Services (an “Authorized User”) may submit content or information to the Services (“Client Data”), and Client may exclusively provide us with instructions on what to do with it.

Client will (a) inform Authorized Users of all Client policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Client Data; and (b) ensure the transfer and processing of Client Data under the Contract is lawful.

User Accounts

A user account allows an Authorized User to access the Services. No matter the role, an account is required for each Authorized User. Accounts are created through the Services interface. Each Authorized User must agree to the User Terms to activate their account. Each account is for a single Authorized User for a specified term and is personal to that Authorized User.

Client Feedback

We welcome client feedback and suggestions, this helps us improve the Services. When providing any feedback or suggestions regarding the Services, the Client grants us (for itself and all of its Authorized Users and other Client personnel) an unlimited, irrevocable, perpetual, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Client, any Authorized User or other Client personnel.

Privacy Policy

Please review our Privacy Policy for more information on how we collect and use data relating to the use and performance of our Services.

Use of the Services

Client must comply with the Contract and ensure that its Authorized Users comply with the Contract and the User Terms. We may review conduct for compliance purposes, but we have no obligation to do so. We aren't responsible for the content of any Client Data or the way Client or its Authorized Users choose to use the Services to store or process any Client Data. The Services are not intended for and should not be used by anyone under the age of 16. Client must ensure that all Authorized Users are over 16 years old. Client is solely responsible for providing high speed internet service for itself and its Authorized Users to access and use the Services.

Our Removal Rights

If we believe that there is a violation of the Contract we may take what we determine to be appropriate action, if Client does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.

Payment Terms

Fees for our Services are specified at the Services interface “check-out” and in the Order Form(s) — and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Contract, fees paid are non-refundable. If we agree to invoice Client by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Client will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Client will reimburse us for such withholding tax.

Locked Services for Non-Payment

If any fees owed to us by Client (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, restrict Client and any associated Authorized Users access to Services. Client acknowledges and agrees that locked Services will result in a loss of features and functionality and loss of access to Client Data. 

Providing the Services

We will (a) make the Services available to Client and its Authorized Users as described in the Contract; and (b) not use or process Client Data for any purpose without Client’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Authorized Users and any processing related to such use or otherwise necessary for the performance of the Contract.

Service Availability

We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will endeavour to provide Client with advance notice (e.g., through the Services), if we think it may exceed five (5) continuous minutes.

Client Data Security

We will maintain administrative, physical, and technical safeguards that will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Client Data by our personnel. Before sharing Client Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Client Data and preventing unauthorized access. Client bears sole responsibility for adequate security, protection and backup of Client Data when in Client’s or its representatives’ or agents’ possession or control. We are not responsible for what Client’s Authorized Users do with Client Data.

Ownership and Proprietary Rights

The Client will own all Client Data. Subject to the terms and conditions of the Contract, Client (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Client Data only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Client. Client represents and warrants that it has secured all rights in and to Client Data from its Authorized Users as may be necessary to grant this license.

We own and will continue to own our Services, including all related intellectual property rights. All of our rights not expressly granted by this license are hereby retained.

Contract Term

A subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Order Forms.

Auto-Renewal

Unless an Order Form says something different, (a) all subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.

Termination for Cause

We or Client may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Client is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to Client if we reasonably believe that the Services are being used by Client or its Authorized Users in violation of applicable law.

Effect of Termination

Upon any termination for cause by Client, we will refund Client 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, Client will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Client of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

Data Deletion

Following termination or expiration of a subscription, we will have no obligation to maintain or provide any Client Data and may thereafter, unless legally prohibited, delete all Client Data in our systems or otherwise in our possession or under our control.

Representations Disclaimer of Warranties

Client represents and warrants that it has validly entered into the Contract and has the legal power to do so. Client further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the User Terms.

Except as expressly provided for herein, the services and all related components and information are provided on an “as is” and “as available” basis without any warranties of any kind, and we expressly disclaim any and all warranties, whether express or implied, including the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Client acknowledges that we do not warrant that the services will be uninterrupted, timely, secure, or error-free.

Limitation of Liability

Other than in connection with a party’s indemnification obligations hereunder, in no event will either client’s or the darkblack extended family’s aggregate liability arising out of or related to the contract or the user terms (whether in contract or tort or under any other theory of liability) exceed the total amount paid by client hereunder in the twelve (12) months preceding the last event giving rise to liability. the foregoing will not limit client’s payment obligations under the “payment terms” section above.

In no event will either Client or DarkBlack have any liability to the other party or to any third 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.

Client is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Client, Authorized Users, or anyone else, if such information is not kept confidential by Client or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.

The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.

Indemnity

We will defend Client from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Client”), and will indemnify Client for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Client in connection with or as a result of, and for amounts paid by Client under a settlement we approve of in connection with, a Claim Against Client; provided, however, that we will have no liability if a Claim Against Client arises from (a) Client Data or Non-DarkBlack Products; and (b) any modification, combination or development of the Services that is not performed by us, including in the use of any application programming interface (API). Client must provide us with prompt written notice of any Claim Against Client and allow us the right to assume the exclusive defence and control, and cooperate with any reasonable requests assisting our defence and settlement of such matter. This section states our sole liability with respect to, and Client’s exclusive remedy against us and the DarkBlack Extended Family for, any Claim Against Client.

Client will defend DarkBlack (“DarkBlack Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Client’s or any of its Authorized Users’ violation of the Contract or the User Terms (a “Claim Against Us”), and will indemnify the DarkBlack Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a DarkBlack Indemnified Party in connection with or as a result of, and for amounts paid by a DarkBlack Indemnified Party under a settlement Client approves of in connection with, a Claim Against Us. We must provide Client with prompt written notice of any Claim Against Us and allow Client the right to assume the exclusive defence and control, and cooperate with any reasonable requests assisting Client’s defence and settlement of such matter. This section states your sole liability with respect to, and the DarkBlack Indemnified Parties’ exclusive remedy against Client for, any Claim Against Us.

Limitations on Indemnifications

Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

Confidential Information

Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Client includes Client Data. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

Protection and Use of Confidential Information

The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Contract.

Compelled Access or Disclosure

The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. Without limiting the foregoing, please review the Data Request Policy for details on how requests may be made for the disclosure of Client Data and how we will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

Survival

All agreements, representations, warranties, indemnities, and covenants made by you in this Agreement or in any other document or otherwise will be deemed to have been relied upon by us and will survive the termination or expiration of this Agreement

Publicity

Client grants us the right to use Client’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential Clients, subject to Client’s standard trademark usage guidelines as provided to us from time-to-time. Client may send us an email to admin@darkblack.ca stating that it does not wish to be used as a reference.

Force Majeure

Neither us nor Client will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

Independent Contractors

The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Contract.

Communication via Email and DarkBlack Messages

Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose to provide notice to Client through the Services. Notices to DarkBlack will be sent to admin@darkblack.ca. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.

Modifications

As our business evolves, we may change these Client Terms and the other components of the Contract (except any Order Forms). If we make a material change to the Contract, we will provide Client with reasonable notice prior to the change taking effect, either by emailing the email address associated with Client’s account or by messaging Client through the Services. Client can review the most current version of the Client Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Client (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Client’s acceptance of any revised terms and conditions.

Waiver

No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

Severability

The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will 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 the Contract will remain in effect.

Assignment

Neither party may assign or delegate 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 the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Client will keep its billing and contact information current at all times by notifying DarkBlack of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. In the event of such a termination by Client, we will refund Client any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Which DarkBlack Entity is Client Contracting With?

All references to ‘DarkBlack,’ ‘we,’ or ‘us’ under the Contract, what law will apply in any dispute or lawsuit arising out of or in connection with the Contract, and which courts have jurisdiction over any such dispute or lawsuit, depend on where Client is domiciled.

The Contract, and any disputes arising out of or related hereto, will be governed exclusively by the applicable governing law above, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in the applicable venue above will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Contract or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. In any action or proceeding to enforce rights under the Contract, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.

Entire Agreement

The Contract, including these Client Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Client or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Client Terms and any other documents or pages referenced in these Client Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) the portions of the Client-Specific Supplement that apply to Client (if any), (3) the Client Terms and (4) finally any other documents or pages referenced in the Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order, vendor onboarding process or web portal, or any other Client order documentation (excluding Order Forms) will be incorporated into or form any part of the Contract, and all such terms or conditions will be null and void.