This Subscription Service Agreement is entered into between Blackdragon, LLC (“Blackdragon”), a Virginia limited liability company and the Client.
Blackdragon sometimes refer to itself as “us” or “we” or “our” and our agreements sometimes refers to the Client as “you” or “your” and singularity as “Party” and together as “Parties.”
Service Subscription Details
Blackdragon’s Subscription services provide monthly deliverables that are tailored to the Client.
AaaS: The Advising-as-a-Service (AaaS) offering is comprised of a wide latitude of services and deliverables designed to strengthen the Client’s strategic business planning and market planning endeavors. It establishes the comprehensive foundation, the living core, that all other aspects of good company health and vitality are built upon. Although not required, this service is designed to be a fundamental direct feed that maximizes the efficacy and success of the PLaaS offering. Deliverables may include, but are not limited to:
- Ad hoc but deliberate and meaningful introductions to, and meetings with, relevant prospective prime and subcontractor partners, new customers, acquisition targets and Government program stakeholders in formulation of, or in concert with a governing strategy.
- Organizational alignment assessment and disposition recommendations for continuously optimizing Client’s contract portfolio, assets, IP, investment opportunities, and more.
- One or more vertical or horizontal “campaigns” – e.g. National Defense penetration (vertical), Cyber Security penetration across domains (horizontal).
- Assessment and advisory support for optimizing ROI by selecting vital investment paths for attaining the right combination of CMMI levels, ISO certifications, Facility Clearances, penetrating additional NAICs, etc., that boost the accomplishment of defined strategic business goals.
- Advisory support to better position the Client for attracting key strategic hires in support of a specific campaign or top priority.
- Expert advisory support for the formation of key CTA or JV partnerships that strengthen Client positioning for target opportunities and/or markets (not including lawyerly functions).
- Support to Corporate Development – cost center guidance, enhanced cost control, initial merger and acquisition assessment and analysis, identifying and/or capitalizing on branding opportunities to improve market relevance.
- Expert lobbying or specialized advocacy services may be made available as augmented support for critical business objectives, upon request.
PLaaS: The Pipeline-as-a-Service (PLaaS) offering is comprised of a minimum number of best-fitting prime and subcontractor opportunities custom matched to the Client’s unique combination of strategic business goals, organizational strengths, weaknesses and available resources to pursue target opportunities. A key attribute of PLaaS is it aims to help Clients focus exclusively on the best-fitting, most winnable contracts while minimizing distractions from those opportunities that are not.
Service Level Features: For both AaaS and PLaaS, the Client may choose from three available Service Levels: Black, Silver, and Gold.
Service Pricing Terms: Within each Service Level for both AaaS and PLaaS, the Client may choose from three available recurring monthly Pricing Terms: Annual, Semi-Annual, and Month-to-Month.
Scope of Services
Client shall provide, at no charge, prompt and reasonable access to information, documentation, equipment, and personnel as requested by Blackdragon to facilitate Blackdragon’s performance of the Services under the agreement. Blackdragon’s performance is contingent upon Client’s timely and effective performance of its responsibilities, decisions, and approval.
No Guarantee of Success: Blackdragon does not guarantee that an award, or contract, or subcontract will be awarded to Client with respect to the services or products provided by Blackdragon. The fee amounts and pre-approved expenses due to Blackdragon under the agreement shall be payable without regard to success.
Projects performed, and services delivered by Blackdragon may include one or more phases leading up to the Client receiving notice of contract award. These phases are:
- Pre-Proposal Phase
- Proposal Development Phase
- Post-Proposal Phase
The agreement pertains only to the Pre-Proposal Phase. It is considered mutually exclusive and severable from any other Agreement for this same opportunity or other relationships, obligations, or commitments existing between Client and Blackdragon.
The duration of this phase is the period whereby services and products may be delivered to Client preceding the official release date of the anticipated RFP.
Proposal Development Phase
The duration of this phase is the period whereby services and products may be delivered to Client between the official release date of the RFP and the date respective final proposal responses are submitted to the Government.
The duration of this phase is the period whereby services and products may be delivered to Client between the final proposal submission to the Government and official notice of contract award including all time periods added to accommodate potential filed protests.
Responsibilities and Roles
Blackdragon projects and undertakings, including services provided via our agreements, are considered collaborative partnerships with the Client. Both parties share mutual interests in the same final outcomes and objectives that culminate towards helping the Client win targeted contracts.
Each party will bear primary, but not exclusive, responsibilities for pre-defined activities throughout the lifespan of the agreement. Each agreement spells these out with specificity, respectfully. Client is additionally responsible for either including Blackdragon in debrief calls with the Government or applicable industry stakeholders, — OR— communicating the debrief in a sufficiently detailed write-up or email as they occur, pertaining to explicit contents of deliverables produced under such agreement.
- Pre-Proposal Phase
- Initial Kickoff
Blackdragon will begin preparation of pre-proposal subscription services by first coordinating and executing a collaborative kick-off session with Client stakeholders to establish rules of the road, initiate collaboration channels, exchange applicable relevant artifacts, and share mutual intelligence to date. Actions and designated points of contact (POCs) from both parties will be identified so Blackdragon can perform services with integrated Client engagement, resulting in creation and transfer of deliverables as defined in the agreement.
Pre-Proposal Products and Services
In addition to services covered within the agreement, Blackdragon offers other pre-proposal products and services. For specific opportunities Blackdragon offers a wide-ranging portfolio of capture deliverables, referred hereafter as Modular Capture™ products. By way of Blackdragon’s Capture-as-a-Service (CaaS) product line, assorted capture products are available for purchase through a separate, mutually exclusive Agreement also linked to the MSA. The term Modular Capture is a registered trademark of Blackdragon. Blackdragon will collaboratively work with Client stakeholders on a timely basis to develop defined capture-related products.
The first deliverable of Services per the agreement shall transpire no sooner than twenty-one (21) days after the Initial Kickoff is completed. Services and deliverables will be scheduled between the parties to recur in four (4) week increments thereafter.
General Terms and Conditions
In connection with providing services to you, we agree that:
- We will provide services to you in a professional, workmanlike manner, in accordance with the specifications and guidelines set forth and agreed to by the Parties, and in compliance with all applicable laws and regulations and professional standards.
- You agree to promptly review our deliverables and services performed by us promptly upon receipt by you.
- We will not violate or breach any third-party intellectual property rights in providing services to you.
- We may rely on the accuracy of information and data that you provide or make available to us without having to independently verify it (unless both of us agree otherwise in a separate agreement).
- Our services will be free of all liens and encumbrances and there are no claims pending or threatened that could have a material adverse effect on our ability to perform our obligations under the agreement. We will have appropriate agreements with our employees and contractors to perform our obligations under the agreement.
- If Blackdragon is performing services at a Client location, Blackdragon personnel will observe and comply with Client’s applicable procedures, rules, regulations and policies (including, but not limited to, those policies relating to health and safety), as Client may communicate to Blackdragon in writing from time to time.
Notwithstanding any provision of the agreement to the contrary, any routines, libraries, tools, methodologies, processes or technologies created, adapted or used by either Party in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”) shall be and remain the sole property of the originating Party, and neither Party shall have interest in or claim to such Development Tools except as necessary to exercise its rights in the Work Product. In addition, notwithstanding any provision of the agreement to the contrary, Either Party shall be free to use any ideas, concepts, or know-how developed or acquired by it during the performance of the agreement to the extent obtained and retained by either Party’s consultants, employees or personnel as impressions and general learning.
Subject to Client’s intellectual property rights, nothing in the agreement shall be construed to preclude either Party from acquiring, developing, marketing, or enhancing for itself or others
similar tools, techniques, methodology or technology performing the same or similar functions as the tools, techniques, methodology or technology used or created pursuant to the agreement.
Work Product Defined
As used herein, the term “Work Product” shall mean any programming, documentation, data compilations, reports, and any other media, materials, or other objects produced as a result of Blackdragon and/or Client’s work or delivered by Blackdragon in the course of performing that work.
Client agrees to provide us with the information, resources and assistance—in a complete, timely manner—that we reasonably require or request to provide services.
- Use of Services
- Acceptable Use Policy
Client is responsible for use of the Services by those to whom Client provides access. Blackdragon reserves the right, at any time, to deactivate or suspend Client’s Subscription if that Client’s use of the Services is found or reasonably suspected, in Blackdragon’s judgment, to violate the use restrictions set forth below.
Client agrees not to:
- Sell, lease, sublicense, assign or otherwise transfer its rights to access and use the Services
- Copy, modify, publish, sell, export, distribute, transfer or perform, or prepare derivative works of, reverse engineer, decompile or otherwise attempt to extract the source code or source data from the Services except and only to the extent permitted or required by law
- Disclose, display or grant access to any part of the Services to any person or entity who is not a designated Client Primary Point of Contact (POC), including, without limitation, any consultant or customer of Client
- Provide, post, or transmit any data that infringes or violates any Intellectual Property Rights or publicity/privacy rights, or that contains anything or involves any act that may impair, interrupt or misappropriate the Subscription or Services
- Use or make the Services available on a service bureau or time-sharing basis
- Use the Services or Documentation to create any service offering, computer software program, training materials or user documentation that is substantially similar to the Services or Documentation
- Use or facilitate use of the Services in any way that is harassing, harmful, obscene, threatening, libelous, or otherwise tortious, or for illegal, abusive or unethical activities (including violations of law or privacy, hacking or computer viruses)
- Permit any Client-designated Primary POC or other third party to do any of the foregoing.
- Blackdragon Use of Services
Blackdragon may access and use the Subscription(s) at Client’s request or to provide support.
- Term; Termination; Add-Ons and Expansions
- Term of Agreement and Subscription(s)
The agreement is effective as of the Effective Date and will expire at the end of Subscription Period, unless otherwise terminated as set forth below. The Subscription Period for Annual and Month-to-Month agreements shall consist of twelve (12) months. The Subscription Period for a Semi-Annual agreement shall consist of six (6) months. All Subscription Periods expire on the last day of the last applicable month.
Renewal of Orders
Unless either party has given the other party written notice of non-renewal of Services at least thirty (30) days prior to the end of a respective Subscription Period or renewal Subscription Period, each Subscription will automatically renew for an additional period at then-current Subscription fees. Annual and Month-to-Month subscriptions will automatically renew for a period of twelve (12) months while Semi-Annual subscriptions will automatically renew for a period of six (6) months. However, the parties may agree in writing to renew a Subscription for longer periods and/or at other mutually agreed upon rates.
To amend the terms of the agreement, both parties must agree in writing to do so via our authorized representatives.
Either party may terminate the agreement as a result of a material breach by the other party, if (i) the non-breaching party provides written notice to the other party of the breach, and (ii) such breach is not cured within ten (10) days of receipt of notice.
Blackdragon may terminate the agreement immediately upon written notification to Client in the case of breach of the Use of Services Section. Upon termination by Blackdragon for material breach by Client, all unpaid fees are immediately due and payable. Upon termination by Client for documented material breach by Blackdragon, Client shall be entitled to a refund of any prepaid, unused Subscription fees as of the date of termination.
In the event of requesting early termination not because of a material breach by either party, the departing party shall notify the other in writing of its desire to terminate the agreement no less than thirty (30) days beforehand. The agreement will end on the last day of the following month. Client shall be responsible for all unpaid balances, taxes and incurred third party expenses, if applicable.
With exception of Month-to-Month terms, Subscription Agreements require a minimum commitment period to purchase Services which shall be billable in accordance with the agreement. Annual agreements shall be payable for a minimum of eight (8) payments at current rate to Blackdragon whereas Semi-Annual agreements require a minimum of four (4) months of payments at current rate.
Add-Ons and Expansions
Client may add new or expand existing Subscriptions, which will be made coterminous with the anniversary date of the then-current Subscription Period and the fees will be prorated.
- Fees and Payment
- Amounts Payable
The initial fee due shall be comprised of one month of the Subscription Services monthly rate plus pro-rata that same rate per the Effective Date of each agreement. The one-month advance payment will be applied to the balance due for the final month of the agreement.
|One-Time Initial Fee Amount:||Recurring Monthly Fee Amount + Pro-Rata Current Month (calculated by taking recurring monthly fee amount dividing by number of calendar days remaining in current month), as of Effective Date for the agreement|
|One-Time Initial Fee Due:||Within 15 days of Effective Date|
|Recurring Monthly Fee Due:||First Business Day of Each Month|
|All Other Invoice Terms:||Net 15|
Blackdragon shall invoice Client for products and services delivered per the terms and conditions listed within the agreement. Payment shall be due upon receipt of invoice. Service fees are exclusive of applicable Other Direct Charges, such as travel, lodging, per diem, and all other related incidental third-party fees. With prior approval by the Client, any costs incurred related to these items will be billed to Client based on actual costs.
Any pre-approved third-party expenses (printing, shipping, supplies, etc.) shall be billed as incurred. Client-approved travel, per diem and lodging will be billed as incurred. Specific salary surveys and affiliated pricing research acquired via third parties for the Client, such as Economic Research Institute (ERI) and PayScale, will be pre-approved and billed to the Client as incurred.
Client shall pay (a) the initial fees within fifteen (15) days of the date of the applicable Effective Date of the agreement, and (b) the initial fees for Subscription Services within fifteen (15) days of the invoice date. Renewal fees will be at Blackdragon’s then-current rates and will be due within fifteen (15) days of the invoice date. All fees are in US Dollars. All payments made under the agreement are non-refundable, except as specifically provided in the agreement. If Client separately arranges with a third party to make some or all payments to Blackdragon under the agreement, Client must notify Blackdragon and provide reasonable documentation before Blackdragon will invoice a third party directly. Blackdragon will not re-issue invoices if Blackdragon does not receive such notice and documentation prior to invoicing. If the third party fails to make payment when due, Client shall promptly pay Blackdragon.
Client will notify Blackdragon within fifteen (15) days after the invoice date if there is a dispute about that invoice. Client shall pay the undisputed portion of the invoice in full when due and notify Blackdragon in writing as to the nature and substance of any disputed portion.
Fees, costs and expenses described in the agreement do not include any sales, use, personal property, duty, levy or similar governance charge, value added or good/services taxes. Blackdragon may include applicable taxes as separate items on Client’s invoice, and Client shall be responsible to pay and/or reimburse Blackdragon for all taxes (other than taxes based on Blackdragon’s income), unless Client has provided adequate evidence of exemption upon execution of the agreement. If withholding taxes are imposed by any government, Client shall remit such taxes in accordance with applicable law, gross up the applicable payment amounts so that Blackdragon receives the full amount of fees invoiced, and provide Blackdragon with applicable evidence of withholding.
Blackdragon may charge interest at the rate of one and one-half percent (1.5 %) per month (eighteen percent (18%) per annum), or at the highest rate allowed by law, whichever is less, from the date due until paid. Blackdragon may suspend Subscriptions, Support, Consulting Services or other performance if Client fails to make full payment of any undisputed amount owed under the agreement within ten (10) days after written notice from Blackdragon. Blackdragon will charge a setup fee to restore a Subscription after any suspension.
Intellectual Property Rights
Blackdragon (or Blackdragon’s licensors) owns:
- All Intellectual Property Rights in or relating to the Services, whether or not those rights are registered
- Any Documentation developed and delivered while providing Consulting Services
- All enhancements, modifications, derivative works and corrections that are made of or to the Services or the applications used to provide the Services, which will be considered part of the “Services” for the purposes of the agreement, and
- Client’s comments, suggestions or other feedback regarding Blackdragon’s products and services.
- Not to remove or replace any Mark from which the Services are viewed or accessed or any associated materials without Blackdragon’s express written consent, and
- To reproduce all Marks on any copy or portion of any associated materials. Client may not modify the Documentation except to the extent necessary to reflect more closely Client’s operations, provided, however, that Blackdragon shall retain all rights in any modified Documentation, which shall be considered Documentation with respect to Client’s rights, and each party shall retain its confidentiality obligations with respect to any Confidential Information in the modified Documentation. Client retains all rights, title and interest in and to Client’s own information, including its Confidential Information and Client Data.
Neither party will issue any public materials that refer to the other party, the agreement, or the subscribed Services without the other party’s prior written consent. However, Blackdragon may identify Client on its client list and may use Client’s name and logo as well as a mutually-agreed general description of the nature of the relationship on its website and in promotional materials, presentations, and proposals to current and prospective clients. Either party may identify the other party or disclose the existence of the agreement to its attorneys, auditors and in connection with regulatory filings.
Any information disclosed by one party (“Disclosing Party”) to the other party (“Recipient”) in connection with the agreement that is marked confidential or that due to its character and nature, a reasonable person under like circumstances would treat as confidential (the “Confidential Information”) will be protected and held in confidence by the Recipient. Confidential Information will be used only for the purposes of the agreement. Recipient shall disclose Confidential Information only to the Recipient’s employees, contractors, or business partners which are bound by confidentiality obligations no less stringent than these prior to any disclosure on a “need to know” basis. Confidential Information does not include information that:
- Is already known to the other party at the time of disclosure;
- Is or becomes publicly known through no wrongful act or failure of the Recipient;
- Is independently developed without benefit of the other’s Confidential Information; or
- Is received from a third party that is not under an obligation of confidentiality.
Recipient party agrees to protect the Confidential Information at all times and in the same manner as it protects the confidentiality of its own proprietary and confidential material of similar kind, but in no event with less than a reasonable standard of care. A Recipient may disclose Confidential Information to the extent required by law, provided that the Recipient provides the Disclosing Party with notice as soon as reasonably practicable to allow the Disclosing Party an opportunity to respond to such requirement and provided further that such disclosure does not relieve Recipient of its confidentiality obligations with respect to any other party.
Upon the request of Disclosing Party, the Recipient shall promptly destroy or return to the Disclosing Party all copies of the Confidential Information and any documents derived from it. This obligation to return or destroy materials or copies thereof does not extend to automatically generated computer back-up or archival copies generated in the ordinary course of Recipient’s information systems procedures, provided that Recipient shall make no further use of Confidential Information contained in those copies. Except as to the confidentiality of trade secrets, these confidentiality restrictions and obligations will terminate two years after the expiration or termination of the Agreement. The Recipient may return any Confidential Information to the Disclosing Party at any time.
Use of Statistical Data
Without limiting Client’s ownership rights in Client Data, Client acknowledges and agrees that Blackdragon shall have the right to utilize data capture, syndication and analysis tools and other similar tools to extract, compile, synthesize and analyze any non-personally and non-Client identifiable data or information resulting from Client’s use of the Services (“Statistical Data”). Statistical Data may be collected by Blackdragon for any lawful business purpose without a duty of accounting to Client, provided that the Statistical Data is used only in an aggregated form without specifically identifying the source of the Statistical Data.
Third Party Claims
Blackdragon will indemnify, defend and hold harmless Client against any damages finally awarded resulting from a third party’s claim (“Claim”) that the Services violate that third party’s Intellectual Property Rights, provided that Client has used the Services strictly in accordance with the terms of the agreement, and only if Client notifies Blackdragon promptly in writing of such Claim and gives Blackdragon full control of and assistance with the defense of such Claim. Blackdragon shall not be responsible for Client’s compromise of such a Claim without Blackdragon’s written consent.
If a Claim is made or appears possible, Blackdragon may, at its option, secure for Client the right to continue to use the Services, modify or replace the Services so that they are non-infringing, or, if neither of the foregoing options is available in Blackdragon’s judgment, terminate the agreement and refund Client any unamortized pre-paid fees for use of the infringing Services. Blackdragon shall have no liability or obligation with respect to any Claim if the infringement is caused by
- Modifications made according to Client’s specifications
- Modifications by any person not authorized in writing by Blackdragon
- Client’s failure to comply with Blackdragon’s direction to cease any activity that in Blackdragon’s reasonable judgment may infringe a third party’s Intellectual Property Rights
- The combination, operation or use of the Services with other product(s) or service(s) not supplied by Blackdragon
- Third party content.
THIS SUBSECTION STATES BLACKDRAGON’S ENTIRE OBLIGATION TO CLIENT WITH RESPECT TO ANY THIRD-PARTY CLAIM.
Client will indemnify, defend and hold harmless Blackdragon against any damages finally awarded resulting from a Claim (including a Claim by a Client designated Primary POC) that
- Client Data, or Client’s misuse of the Services, harms any person, violates any law, or violates that third party’s Intellectual Property Rights, privacy, or other rights
- Client has breached any Third-Party Terms, or
- Client has violated the rights of the third party in posting, transmitting, storing, retaining or deleting of Client Data, only if Blackdragon notifies Client promptly in writing of such Claim and gives Client full control of and assistance for the defense of such Claim. Client shall not be responsible for Blackdragon’s compromise of such a Claim without Client’s written consent.
- Limited Warranties
- Subscription Services
Blackdragon warrants that the Subscription Services will conform to the Documentation under normal use and circumstances. During the Subscription Period, at no additional cost to Client and as Client’s sole and exclusive remedy for failure to meet this limited warranty, Blackdragon will correct any material fault in the Blackdragon deliverables used to provide the Services (“Defect”) in accordance with the Support guidelines, provided that Client promptly notifies Blackdragon in writing upon discovery of any such Defect and Blackdragon’s investigation discloses that such Defect exists. This limited warranty will be void if the Defect is caused by (a) the use or operation of the Services or in an environment other than that described in the Documentation or recommended in writing by Blackdragon, or (b) modifications to the Services that were not made by Blackdragon.
Services other than the Subscription Services are available strictly on an “as is,” “as available” basis, and Client’s use of such Services is at Client’s sole risk. Certain information provided to Client through such Services is obtained from publicly available sources, the accuracy of which Blackdragon does not verify, and Client acknowledges that such information may contain inaccuracies or errors.
EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION, BLACKDRAGON MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. BLACKDRAGON DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE TIMELY, COMPLETE, RELIABLE, ADEQUATE, ACCURATE, USEFUL, SECURE OR ERROR-FREE.
Client may not assign any of its rights or obligations under or sublicense the agreement without Blackdragon’s prior written consent, such consent shall not be unreasonably withheld.
Compliance with Laws
Each party will be responsible for compliance with all legal requirements related to its use of the Services, including those related to the disclosure of data.
Client shall comply with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Client operates or does business. Client represents and warrants that Client is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Client is not listed on any U.S. Government list of prohibited or restricted parties.
U.S. Government Rights
The Services are deemed to be “Commercial Items” and if the Services are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier) for use by or for the benefit of the U.S. Government, then the Government’s rights in the Services will be only as set forth in the agreement and in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense “DOD” acquisitions) and with 48 CFR 2.101 and 12.212 (for civilian acquisitions).
Special U.S. Government Provisions
In connection with our performance under the agreement, we agree to comply with the provisions of the Federal Acquisition Regulations (“FAR”) which follow, as well as those provisions of FAR 52.244-6 (available at www.acquisition.gov/far), as applicable. Specifically, we agree to comply with the following regulations, as applicable, in their entirety:
Equal Opportunity and Affirmative Action. Blackdragon is an Equal Opportunity and Affirmative Action Employer. Unless exempt, we shall abide by the requirements of 41 CFR §§60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national, origin, protected veteran status or disability.
Each party shall comply with the U.S. CAN-SPAM Act of 2003, 15 U.S.C. §§ 7701-7713 when applicable.
The agreement, including any attachments identified as incorporated into the agreement, is the entire agreement between Client and Blackdragon relating to the Services and supersedes all prior or contemporaneous oral or written communications. Notwithstanding the foregoing, the agreement does not affect any services agreement between the parties, nor does it affect any subscription agreement between the parties for any Blackdragon product or service other than the Services and Consulting Services ordered hereunder. The agreement will not be modified by the terms of any purchase order, or other instrument documenting a transaction that is issued by Client in connection with the agreement, nor by any other act, document, usage, custom, or course of dealing.
In no event shall either party be liable to the other for any delay or failure to perform its obligations under the agreement (excluding payment obligations) due to causes beyond the reasonable control of that party, including acts of a government and severe weather conditions.
The agreement may be executed in several counterparts each of which when executed shall be deemed to be an original.
The parties are independent contractors and may not make commitments or representations on behalf of one another.
Right to Enforce
Any person not a party to the agreement shall have no right to enforce any term of the agreement.
All required notices under the agreement must be in writing and will be considered given when delivered (i) in person; or (ii) by certified or registered mail or overnight courier to the addresses listed below (or such other address as one of us may update and communicate to the other).
Except for notices sent to Client as part of Blackdragon’s general customer base, notices to Client shall be provided to the listed address in the agreement. Notices to Blackdragon shall be sent via email to firstname.lastname@example.org. Electronic notices to the Client shall be sent via email to following address: email@example.com
If a court holds any provision(s) of the agreement to be illegal or unenforceable, the remainder of the agreement will remain valid and enforceable.
Provisions anywhere in the Agreement regarding payment, termination, proprietary rights, Intellectual Property Rights, warranties, limitations of liability, governing law, dispute resolution, confidentiality, severability, export control, and waivers will survive the expiration or termination of the agreement.
A waiver of any breach of the agreement is not a waiver of any other breach of the agreement. Any waiver must be in writing and signed by an authorized representative of the waiving party.
In the event any of the terms and conditions of the agreement conflict with other agreements between the Parties, the agreement will control and prevail unless and only to the extent the other agreement(s) references the specific provisions of the agreement.
The agreement will be governed by the laws of the Commonwealth of Virginia, without regard to its conflicts of law provisions.
In any litigation between the Parties relating to the agreement or the performance thereof, the prevailing Part shall be entitled to reasonable attorneys’ fees and expenses.
Some of the following definitions may not be applicable, depending on Client’s Subscription(s).
- “Client Primary Point of Contact (POC)” means the designated individual who is authorized in accordance with the agreement by Client to access and use the Services.
- “Client Data” means all electronic data or information that Client or any authorized representative loads, transfers, or shares with Blackdragon or enters into the Services and all results from processing such data, including compilations and derivative works.
- “Documentation” means the technical documentation applicable to the Services, including training guides, manuals, user guides and education materials on any medium.
- “Effective Date” means the date upon which the agreement becomes effective.
- “Intellectual Property Rights” means all copyrights, moral rights, database rights, patents, patentable ideas, inventions, patent applications, patent registrations, patent renewals, trade secrets, derivative works, know-how, Marks, goodwill, all rights in the nature of unfair competition rights, and rights to sue in passing off, and confidentiality or any other similar proprietary right arising or enforceable under applicable law.
- “Marks” means registered or unregistered trademarks, service marks, trade names, logos, service names, or other proprietary markings.
- “Services” mean the recurring Blackdragon deliverables and respective level of online user features provided as a service by Blackdragon that are ordered and purchased by Client including associated offline components but excluding any third parties.
- “Subscription” means the right of a Client and its Primary POC to access the Services during the Subscription Period.
- “Subscription Period” means the period during which Client may use the Services, as specified in the agreement. The Subscription Period begins on the Effective Date of the MSA.
- “Third Party Terms” means terms issued by a third party that govern Client’s use of the Services. Blackdragon may notify Client of Third-Party Terms by referencing them in the agreement or future agreements, or by providing other written notice from time to time. All Third-Party Terms are incorporated into the agreement by this reference.
- “Updates” means upgrades, modifications, improvements, enhancements, extensions, new releases, and other changes to the Services that Blackdragon makes available.
Specific Terms for Services (“Subscription”)
Upon the Effective Date and subject to the agreement and Client’s payment obligations, Blackdragon grants to Client and its designated Primary POCs a non-exclusive, non-transferable (except as provided in the agreement), non-sublicenseable right to access and use the Services for the Subscription Period. Client shall have no right to receive any object code, source code or source data relating to the Services. Client grants to Blackdragon a non-exclusive, non-transferable right to access and use Client Data as reasonably required to provide the Services to Client and its Primary POC.
Client may not copy or incorporate portions of the Documentation of the Services except in training materials for Client’s internal use only, provided that the incorporated materials shall bear a notice of Blackdragon’s copyright and trademarks.
- Client Primary Points of Contact (POC)
- Client Primary POC
Each Client Primary POC is the individual formally designated as the Client’s principal agent responsible for the agreement and the official recipient of Subscription Services delivered. Every Subscription for Services shall have a Client designated Primary POC that is identified and maintained during the period of performance. However, Client may reassign from time to time to a new Primary POC replacing a former Primary POC. Client will notify Blackdragon when Client no longer employs a Primary POC or if a Primary POC should otherwise be denied access to the Services. Client may also exchange or swap an existing Primary POC affiliated with a Service Subscription to a new or different Blackdragon Service Subscription.
Changing Primary POCs
Client may change designated Primary POC during a Subscription Period. Except where the Subscription is a flat fee or another agreement with Blackdragon indicates otherwise, the Subscription Period for any Primary POC shall end with the Client’s current Subscription Period for that Service and the Subscription fee shall be prorated accordingly.
At Client’s discretion, Client may share the deliverables and content of Services or Documentation beyond the Client’s current Primary POC as specified in the agreement, as may be amended from time to time, but may not permit use of the Services by anyone other than Client’s Primary POC who may be (i) employees of Client, (ii) employees of an Affiliate, or (iii) Support Contractor personnel, except for other Blackdragon products or services. Client Primary POCs for other Blackdragon products or services may include authorized employees of Client and consultants, contractors, suppliers or teaming partners or agents designated in advance by Client as Primary POCs per Agreement.
“Affiliate” means any entity that is controlled by Client or is under common control with Client through at least a 51% ownership (or through board or directors’ control if a not-for-profit entity). “Support Contractor” means a third party with whom Client has contracted to maintain or operate Subscription Services for and on behalf of Client subject to the terms and conditions of the agreement. Client must provide written notice to Blackdragon identifying any Support Contractor that is given access to the Services.
If the Client’s volume of use may degrade or otherwise interfere with the Services or other performance, Blackdragon will take appropriate measures, which may include immediate deactivation. Blackdragon aims to continuously ensure its newest Services remain relevant to and valued by Client and aspires for all Services offered to meet or exceed conventional market standards. However, upgrades to the processing capacity, accuracy or enhancement to existing Services in response to disproportionate Client demand on a per Subscription basis may be available at Blackdragon’s option but will be subject to an additional charge. Blackdragon in its sole discretion may terminate a Client’s Subscription if excessive usage distorts or leads to an imbalance in the spirit of the agreement.
Blackdragon occasionally provides updates, modifications or enrichments to its Services which may include alterations to and replacement of features and functionality. Some changes to the Services may occur automatically, while others may require Client to schedule and implement the changes.
Blackdragon shall provide reasonable general technical support (“Support”) to allow Client to report problems and to seek assistance in the use of the Services during Blackdragon’s standard Support hours.
- Client Data
Client owns all rights, title and interest in and to Client Data and is solely responsible for the accuracy, integrity, quality, legality, reliability, appropriateness of and copyright permissions of any Client Data and for adopting procedures to identify and correct errors and omissions in Client Data.
All Work Product(s) made by our consultants for you shall be considered work(s) made for hire and shall belong exclusively to you and your designees.
Client agrees that: (a) Client Data has been collected, processed and provided to Blackdragon in accordance with all applicable U.S. and international laws, including applicable data protection legislation, and (b) Client has provided any required notices and obtained any required consents from Client Primary POCs concerning the collection, use, processing, transfer and disclosure of personal information relating to Client’s use of the Services and Blackdragon’s provision of the Services. Client is the data controller for the purposes of the agreement.
Blackdragon will handle Client Data only in accordance with the agreement, its privacy and applicable portal user policies and any lawful instructions reasonably given by Client. Blackdragon is the data processor for the purposes of the agreement and may move Client Data to locations around the world as necessary to perform obligations under the agreement.
Each party will implement reasonable and appropriate measures to protect Client Data and prevent any unauthorized person or entity from gaining access thereto. Client is responsible for verifying that its Primary POC accessing Client Data are properly authorized to do so. Except as stated herein, Blackdragon has no responsibility for unauthorized access to the Services. Each party will promptly notify the other if that party has actual knowledge of unauthorized access to and/or use of Client Data or passwords and use reasonable efforts to take prompt remedial measures to rectify such unauthorized access.
Content of and Direction for Client Data
Client agrees that Blackdragon is reliant on Client for direction as to the extent to which Blackdragon is entitled to use and process Client Data through the Services or Consulting Services. Consequently, Blackdragon will not be liable for any claim arising from any action or omission by Blackdragon to the extent that such action or omission resulted directly from Blackdragon’s provision of the Services or Consulting Services consistent with the agreement or Client’s instructions. Client is solely responsible for any and all Client Data that Client or any designated Primary POC stores, transmits, displays, or otherwise uses in connection with the Services or Consulting Services.
Blackdragon respects the intellectual property and other proprietary rights of others and may remove content from the Services that infringes third party copyrights or other intellectual property rights and suspend any Primary POC who uses the Services in violation of copyright law or other laws governing intellectual property rights, and where appropriate, blocking such user’s access to the Services.
Return of Client Data
Upon Client’s written request made within thirty (30) days of termination or expiration of a Subscription or the agreement, Blackdragon will return to Client a single copy of all Client Data in Blackdragon’s then-current industry standard data extract format. Additional Client Data copies shall be available for a fee. After such 30-day period, Blackdragon shall have no obligation to maintain or provide any Client Data and shall, unless legally prohibited, delete all Client Data in its possession or under its control. Notwithstanding the foregoing, Blackdragon may retain Client Data in backup media for an additional period of up to twelve (12) months, or longer if required by law.